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Publications
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02.22.2024Top Advertising Law Trends for 2024UpdatesWith the first quarter of 2024 in full swing, it is a good time for brands to revisit marketing compliance strategies to minimize the risk of potential class actions, regulatory enforcement actions, and competitor challenges. This Update highlights hot topics in advertising law for 2024.
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09.18.2023ESG, Professional Perspective - Sustainability Advertising: US & EU Regulators Eye Enhanced Enforcement MechanismsArticlesAmanda Beane and Tim Carter's update as part of the Summer Sustainability Series was republished by Bloomberg Law regarding certain regulatory developments in the United States and EU related to green claims.
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07.27.2023Sustainability Advertising: US and EU Regulators Boost Guidance and EnforcementUpdatesBrands continue to promote sustainable and eco-friendly qualities of their products and services, and regulators are sharpening their enforcement tools in response. This Update summarizes certain regulatory developments in the United States and EU related to green claims.
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04.04.2023FTC Proposes Rulemaking for Recurring Subscription ProgramsUpdatesThe Federal Trade Commission recently announced a notice of proposed rulemaking to expand its Negative Option Rule to apply to all recurring subscription programs.
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12.29.2022Keep Your New Year Happy and Bright With These Ad Law TipsUpdatesAnother new year approaches, so it’s time for retailers to revisit advertising and marketing law compliance strategies to avoid class actions, regulatory enforcement actions, and competitor challenges. In this Update, we share our picks for the top five U.S. marketing law topics that deserve your attention in 2023.
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10.04.2022
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09.15.2022Discussion with NAD on the FTC's Proposed Endorsement Guide RevisionsPodcasts
The AMP Moment - Episode 10
Laura Brett, Vice President of BBB National Programs' National Advertising Division (NAD), recently spoke with Jason and Amanda to discuss recent trends at the NAD, along with her reactions to the Federal Trade Commission's proposed updates to the Endorsement Guides that set rules of the road for influencer marketing and the use of consumer reviews in advertising. -
08.15.2022Aspiring To Be Green? Avoid Common Advertising PitfallsUpdates
Brands recognize that consumers value sustainability and continue to promote the green and eco-friendly qualities of their products and services. However, with growing popularity comes extra scrutiny, and “green claims” are increasingly subject to challenge by regulators, competitors, and class action plaintiffs.
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05.31.2022FTC Proposes Updated Guidance for Influencer and Consumer Review ProgramsUpdatesThe Federal Trade Commission recently proposed updates to its Guides Concerning the Use of Endorsements and Testimonials in Advertising. This article introduces key proposed changes to the Guides that signal the FTC’s evolving views on how to avoid deceptive practices related to social media influencers, customer review programs, advertising to children, and more.
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03.31.2022FTC Enforcement Hot TopicsPodcasts
The AMP Moment - Episode 9
Jason Howell and Amanda Beane talk with Janis Kestenbaum, partner at Perkins Coie and former Federal Trade Commission (FTC) attorney, about the makeup and direction of the FTC as it relates to advertising and marketing law. -
03.09.2022Amanda Beane and Jason Howell Author Law360 Article—5 Advertising Enforcement Trends To WatchArticles
Law360
Savvy companies keep a watchful eye out for advertising, marketing and promotion practices that tend to draw significant scrutiny from consumers and regulators. This year, the Federal Trade Commission is expected to be more aggressive on consumer protection issues than it has been in the recent past, and the state consumer protection law and enforcement landscape is shifting too. -
01.26.2022Recent DOJ Settlements Show Step Up in Web Accessibility Enforcement by Biden AdministrationUpdatesThe U.S. Department of Justice recently entered into settlement agreements with Hy-Vee and Rite Aid in response to the DOJ’s concern that the companies’ vaccine registration websites were not accessible to individuals with vision impairments and other disabilities.
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12.16.2021Ad Law Resolutions for 2022Updates‘Tis the season for retailers to set best practices to avoid class actions, regulatory enforcement actions, and competitor claims.
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12.14.2021Gender-based PricingPodcastsJason Howell and Amanda Beane team up with Mark Richardson from Target Corporation to discuss the New York state Pink Tax law and its application to retailers and brands.
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11.16.2021Advertising Disputes—An Alternative to LitigationPodcastsFor 50 years, the National Advertising Division (NAD) has been at the forefront of monitoring national advertising, enforcing high standards of truth and accuracy, and resolving advertising disputes (typically between competitors) to build consumer trust and support fair and truthful marketing.
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09.08.2021Sustainability Advertising: Key TakeawaysUpdatesIn this issue of the Perkins Coie Summer Sustainability Series, we discuss best practices based on Federal Trade Commission guidance and the most recent green advertising litigation trends.
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06.24.2021National Advertising Division Weighs in on Advertising Claims Related to Lab-Grown DiamondsBlogs
The National Advertising Division (NAD) recently issued recommendations to diamond companies in response to two challenges concerning advertising claims for diamonds that are created in a laboratory, rather than mined from the earth (commonly referred to as “lab-grown diamonds” or “LGDs”).
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06.09.2021Loyalty and Rewards ProgramsPodcastsJason Howell and Amanda Beane team up with Miriam Farhi, co-chair of Perkins Coie’s Privacy & Security practice, to discuss common legal issues and pitfalls associated with loyalty and rewards programs, including in the areas of marketing, privacy, and litigation.
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05.27.20215 Current Ad And Marketing Legal Risks To Watch Out ForArticles
Law360
Companies continue to use various marketing initiatives and tactics to differentiate themselves in the marketplace, while navigating the ongoing pandemic and new legislative and regulatory developments. -
04.23.2021Supreme Court Rules FTC Cannot Obtain Monetary Relief Under Section 13(b)UpdatesOn April 22, 2021, in a unanimous decision, the U.S. Supreme Court in AMG Capital Management v. FTC held that the authorization to seek a “permanent injunction” under Section 13(b) of the Federal Trade Commission Act does not permit the FTC to obtain equitable monetary relief such as restitution and disgorgement. While the FTC may still seek monetary relief under Sections 5 and 19 of the Act, those provisions can be more difficult for the FTC to pursue. FTC Acting Chairwoman Rebecca Kelly Slaughter is already calling on Congress to “strengthen the FTC’s powers” in light of the decision.
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04.13.2021Subscriptions and Recurring Billing: What You Need to KnowPodcastsIn this episode, Jason Howell and Amanda Beane discuss compliance tips and litigation risks for businesses.
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02.10.2021Practice in a Pandemic: In-house Counsel Work and Life TipsPodcastsJason Howell and Amanda Beane and guest Lindsey Buckner from 7-Eleven discuss common challenges for in-house legal, including how to seamlessly integrate with in-house marketing teams and how to create work-life boundaries while working from home during the pandemic.
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2021 | BookCannabis Law: A Primer on Federal and State Law Regarding Marijuana, Hemp, and CBDUntil now, there has been no single reference to guide cannabis lawyers through the full continuum of legal challenges in the industry. This treatise fills that gap from a sophisticated perspective by highlighting key issues in more than a dozen practice areas and covering the impact of cannabis law from U.S. state and federal, as well as Canadian, enforcement and regulatory agencies.
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12.14.2020Hot Ad Law Topics for 2021UpdatesRing in the new year by avoiding practices that could result in class actions, regulatory enforcement actions, and competitor claims.
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11.09.2020Price, Sale, and Discount AdvertisingPodcastsJason Howell and Amanda Beane discuss the basics of “was/now” pricing, discounts off of list and MSRP prices, and free offers.
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09.11.2020Green Advertising and SustainabilityPodcasts
The AMP Moment - Episode 2
Where advertising, marketing, and promotions law meets practicing in the momentJason Howell and Amanda Beane discuss green advertising, marketing, and sustainability issues, and how to navigate related pitfalls.
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08.04.2020Class Action Litigation in the COVID-19 EraUpdatesHundreds of COVID-19-related class action claims have been filed in state and federal courts throughout the country.
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07.22.2020Sustainability in Advertising LawUpdatesBrands continue to build their sustainability and environmental marketing programs in response to consumer demand.
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07.16.2020COVID-19 and Advertising and Marketing LawPodcasts
The AMP Moment - Episode 1
Where advertising, marketing, and promotions law meets practicing in the momentJason Howell and Amanda Beane discuss practicing law in the current climate and share hot marketing and litigation topics and observations during COVID-19, including health claims, cause marketing, and consumer contracts. -
04.24.2020Supreme Court Holds Willfulness Not Required for Disgorgement of Profits in Lanham Act Cases, Defendant’s Mental State Remains Important FactorUpdatesThe U.S. Supreme Court held this week that willfulness is not a prerequisite for an award of profits for violation of Lanham Act § 43(a), 15 U.S.C. § 1125(a), resolving a longstanding circuit split.
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03.19.2020LendEDU Agrees to Settle FTC Charges Alleging Deceptive Advertising PracticesBlogs
Operators of the LendEDU website entered into a settlement agreement with the Federal Trade Commission (FTC) in response to allegations that LendEDU misled consumers by claiming that its website provided objective, unbiased rankings of financial products, when in fact they offered better ratings to companies that paid for the endorsement.
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12.12.2019Hot Ad Law Topics for 2020UpdatesDon’t let the new year be ruined by U.S. class actions, regulatory enforcement actions, or competitor claims. Here are five ad law takeaways for brand and legal teams to consider as 2020 approaches.
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10.08.2019U.S. Supreme Court Rejects Domino’s Petition Seeking Clarity on Web Accessibility Under the ADAUpdatesOn October 7, 2019, the U.S. Supreme Court denied a petition filed by Domino’s Pizza asking the Court to decide whether Title III of the Americans with Disabilities Act (ADA) applies to websites and mobile apps.
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08.30.2019When to Choose Between a Lawsuit or Filing a Challenge With the NADArticlesA competitor has engaged in high-profile false advertising, and your CEO wants to use an enforcement hammer with more weight than a cease-and-desist letter.
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01.18.2019Ninth Circuit Rules That Lack of Web Accessibility Regulations Does Not Bar ADA SuitsUpdatesThe U.S. Court of Appeals for the Ninth Circuit issued a decision on January 15, 2019 in a closely followed web accessibility case, Robles v. Domino’s Pizza, LLC, reaffirming Ninth Circuit precedent holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under the Americans with Disabilities Act for failing to make their websites and apps accessible to persons with disabilities.
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11.27.2018Hot Ad Law Topics for the New YearUpdatesHere are five ad law takeaways for brand and legal teams to consider as 2019 approaches.
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03.07.2018Marketers BewareArticlesThe Federal Trade Commission is experiencing a major shakeup this year, with several new commissioners slated for approval. The changing composition of the FTC has led many to believe that the newly-appointed commissioners will be less active than their predecessors – or at least less inclined to seek financial penalties for certain marketing tactics – but that they will still target advertising practices that deceive and harm consumers.
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12.14.2017Top Advertising Law Enforcement Trends for the New YearUpdatesThis holiday season, brands are ready for bustling sales, special offers and joyful consumers.
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01.23.2017How Retailers Can Steer Clear of ADA LawsuitsArticlesThe Americans with Disabilities Act (ADA), first enacted in 1990, generally requires that retailers — as “places of public accommodation” — provide access for those with disabilities to the goods and services offered.
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09.13.2016NJ’s Truth-in-Consumer Contract, Warranty and Notice Act: Will Related Class Actions Against Retailers Continue?UpdatesThis year brought a wave of class action complaints alleging that national retailers are violating the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. §§ 56:12-14 et seq., by including certain provisions in their online terms and other consumer-facing notices and agreements.
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08.03.2016Avoiding Lawsuits under the ADAUpdatesAs retailers enter the holiday season amid a period of increased compliance lawsuits related to the ADA, we offer some timely ways to steer clear of potential ADA pitfalls.
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02.2016Litigation trend: Website accessibility under the ADAArticlesIn 2016, companies should consider examining the issue of website accessibility under Title III of the Americans with Disabilities Act.
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03.19.2013Retailers Beware: Massachusetts Court Restricts Ability to Collect ZIP Codes at Point of SaleUpdatesThe Supreme Judicial Court of Massachusetts recently held that collecting a consumer's ZIP code at the point of sale may violate Massachusetts General Laws Chapter 93, Section 105(a) (Section 105(a)), which restricts the ability of retailers to collect personal identification information (PII) from consumers in connection with a credit card transaction.
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02.19.2013Check Your Arbitration Agreements After New Washington Supreme Court CaseUpdatesA recent Washington Supreme Court case, Gandee v. LDL Freedom Enterprises, Inc., No. 87674-6 (Feb. 7, 2013), provides important insights into how Washington courts approach the enforceability of arbitration agreements in the wake of the U.S. Supreme Court’s seminal decision in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011).
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07.02.2012Unexpected Dismissal by Supreme Court Leaves Intact Ninth Circuit Decision Holding That Violation of a Statutory Right, Without Actual Damage, Confers Article III StandingUpdatesA Supreme Court decision long-awaited by the class action bar and businesses was a surprise non-event last Thursday when, seven months after hearing oral arguments in First American Financial Corp. v. Edwards, the Supreme Court issued an order dismissing the writ of certiorari in the case as improvidently granted. The Supreme Court's per curiam order, presented without reasoning, left intact the Ninth Circuit's holding that a plaintiff who pled a statutory violation but not actual damages had standing under Article III of the U.S. Constitution, which requires that a plaintiff has suffered a concrete “injury in fact.” The Supreme Court's decision means that, at least in the Ninth Circuit “[t]he injury required by Article III can exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’”
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01.11.2012California's Song-Beverly Act Does Not Apply to Kiosk TransactionsUpdatesOn January 6, 2012, the U.S. District Court for the Central District of California dismissed with prejudice Mehrens v. Redbox Automated Retail, LLC, a putative class action against Redbox alleging that Redbox violated California's Song-Beverly Credit Card Act by requesting ZIP codes and email addresses in connection with credit card transactions.
Presentations
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06.29.2022NAD Hot Topics Marketing and Advertising Law PanelSpeaking EngagementsSponsorship
Panelist
BBB National Programs / Seattle, WAJason Howell and Amanda Beane, co-chairs of the firm’s Advertising, Marketing & Promotions (AMP) industry group, partnered with Laura Brett of BBB National Programs and Patricia Doyle from Microsoft to host a marketing and advertising law panel discussion on June 29. -
04.05.2022NAD Hot Topics Marketing and Advertising Law PanelSpeaking EngagementsSponsorship
Panelist
BBB National Programs / VirtualJason Howell and Amanda Beane, co-chairs of the firm’s Advertising, Marketing & Promotions (AMP) industry group, partnered with Laura Brett of BBB National Programs to host a marketing and advertising law panel discussion on April 5. -
11.15.2021 - 11.17.20212021 ANA/BAA Marketing Law ConferenceSpeaking EngagementsSponsorship
ANA / Virtual & San Diego, CAPerkins Coie is a platinum sponsor of the virtual 2021 ANA/BAA Marketing Law Conference. -
09.29.2021 - 10.01.20212021 National Advertising Division (NAD) Annual ConferenceSponsorship
National Advertising Division (NAD) / Virtual -
11.10.2020 - 11.12.20202020 ANA/BAA Marketing Law Conference: A Virtual ExperienceSpeaking EngagementsSponsorship
ANA/BAA Marketing Law Conference / VirtualPerkins Coie was a platinum sponsor of the virtual 2020 ANA/BAA Marketing Law Conference.
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10.05.2020 – 10.07.20202020 National Advertising Division (NAD) Annual ConferenceSponsorship
National Advertising Division (NAD) / Virtual -
05.21.2020Advertising and Consumer Protection Law UpdateSpeaking EngagementsAssociation of National Advertisers / Webinar
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11.04.2019 - 11.06.2019Price and Sales AdvertisingSpeaking Engagements
Sponsorship
2019 ANA/BAA Marketing Law Conference / San Diego, CA -
04.25.2019Comparative Advertising: Strategies for Comparative CampaignsSpeaking EngagementsWSBA CLE Program / Seattle, WA
Blog
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DOJ Adopts Accessibility Standards for State and Local Government Web Content
Key Updates: The DOJ has long indicated that accessibility obligations extend to web content and apps in addition to physical spaces. The DOJ considered codifying its position in 2010 when, in an Advanced Notice of Proposed Rulemaking, the DOJ sought comment on accessibility standards for web content under both Title II and Title III. However,... -
Top Advertising Law Trends for 2024
With the first quarter of 2024 in full swing, it is a good time for brands to revisit marketing compliance strategies to minimize the risk of potential class actions, regulatory enforcement actions, and competitor challenges. This Update highlights hot topics in advertising law for 2024. Click here to read the full Update. -
Judge Rules Water Bottler Must Face Class Action Over “Carbon Neutral” Claims
Key Update: The lawsuit seeks to represent a nationwide class and a California subclass of consumers who purchased Evian brand water bottles. The plaintiffs claimed that the Carbon Trust certification logo on the packaging misled customers into believing that the product’s manufacturing process had no carbon footprint. The plaintiffs also assert that Danone’s advertising is... -
Junk Fees Under Scrutiny: FTC Issues Proposed Rulemaking
Key Updates: Two types of fees are prohibited by the proposed rule: The Commission voted 3-0 to approve the publication of the notice of proposed rulemaking. Consumers have 60 days after the notice is published in the Federal Register to submit comments electronically. The FTC proposal is part of a larger effort to combat hidden...
