Category Archives: Advertising Matter

With Operation Full Disclosure, the FTC Fires a “Clear and Conspicuous” Warning Shot

By: Brian J. Meli

If the Federal Trade Commission (FTC) were a division of the Department of Defense, its recent Operation Full Disclosure would be the equivalent of dropping leaflets over a battlefield. Part bid to win FILES-US-GOVERNMENT-FTChearts and minds, part fair warning before punitive actions start raining down, the September initiative consisted of a salvo of choicely worded warning letters addressed to more than 60 U.S. companies, including 20 of the largest 100 national advertisers. The message contained in those letters was clear: advertising has changed dramatically, but advertiser’s disclosure obligations have not.

The FTC didn’t make the identities of those 60-plus advertisers public; only that they represent a sample of various industries and product categories, and that their traditional advertising (print and television) contained seriously inadequate disclosures that could lead to consumer confusion. The consumer protection agency also made a point to emphasize that if an advertiser didn’t receive a letter they shouldn’t take that to mean their advertising complies with current disclosure requirements, suggesting this was a narrowly focused effort to draw attention to a widespread problem.

So what exactly did the FTC hope to accomplish with its Operation Full Disclosure initiative, and what should advertisers take away from it?

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Getty Has An Image Problem: The Portrait of a Modern Copyright Dilemma




By: Brian J. Meli

To be, or not to be, that is the question—
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing, end them?

~Prince Hamlet

Google ‘Getty Images’ and ‘demand letter’ and you’ll have your pick of vitriol-laced horror stories to choose from. The storylines vary case-by-case, but the narrative is usually the same: Getty Images is a predatory company that’s made an unscrupulous art form out of extorting millions of dollars from unsuspecting Internet-goers. Most of the accounts you’ll read go something like this: someone unwittingly uses an image from the company’s library without permission on his/her website, social media page or blog, triggering a pernicious demand letter containing sweeping allegations of copyright infringement. The demand letter then seeks compensation in an amount significantly above what most consider reasonable—but below what’s usually worth hiring a lawyer to mount a defense over—in exchange for the matter being dropped; leading ultimately to the response de rigueur of “just pay the bastards.”

It’s this perceived extortion as a business model that invokes such public hostility, has given rise to entire online gripe communities, and why, I suspect, if you’re conducting an opinion poll among Internet users asking what word best describes the Seattle-based company, you’ll get responses like “unreasonable,” “bully” and maybe even “criminal.” The negative sentiment runs deep, and was on full display recently when a particularly able-bodied recipient of one such demand letter (an intellectual property law firm), responded with a lawsuit of its own. The public’s jubilant response to the prospect of Getty getting some comeuppance sent a loud and clear message: Getty Images is the company everyone loves to hate.

But is Getty really the villain people make it out to be? Or is it merely a misunderstood company doing what it can to protect its interests and guard its digital property in this age of point, click and copy?

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The Wisdom of Crowds: The Risks and Rewards of Crowdsourcing and the User-Generated Content Movement

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By: Brian J. Meli

Nowhere is the Internet’s ability to lay waste to established but out-moded industries on fuller display than in the realm of crowdsourcing. Everywhere you turn there’s a new crowdsourced-based start-up boldly proclaiming the dawn of a new era and the end of the way you’re currently (and have always been) doing something. Whether that something is locating sources for investment capital or booking a second honeymoon, there’s a host of new companies promising to do it more efficiently and less expensively than ever before by unleashing the power of the masses.

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The POM Wonderful v. Coca-Cola Decision Is In, And The Supreme Court Unanimously Sides With Private Plaintiffs

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By: Brian J. Meli

Eleven amicus briefs were filed in support of POM Wonderful and Coca-Cola, but the real argument wasn’t between the captioned parties in the case. This was a clash of laws, pitting the Federal Food Drug and Cosmetic Act (FDCA) and Nutrition Labeling and Education Act (NLEA) against Section 43 of the Lanham Act for consumer protection supremacy. This was a dispute about the authority of administrative rules to usurp the rights of private claimants seeking to recover from commercial injury. The question of first impression: whether compliance with the FDCA and NLEA regulations pertaining to food and beverage labeling requirements precluded POM’s right to bring a private action alleging unfair and deceptive trade practices against a competitor, in this case Coke, under the Lanham Act. Now that The Supreme Court has ruled, we know the answer to that question. And it’s a resounding “no.”

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A Billboard In Peru, And The Obsolescence Of The Commercial Speech Doctrine


By: Brian J. Meli

For nearly forty years the fault line dissecting freedom of speech under the First Amendment has been a concept as widely accepted in judicial circles as Newton’s law of gravitation in scientific ones. One side of that line belongs exclusively to commercial speech, more commonly known by its street name: advertising. The other side is the domain of non-commercial speech, which is more or less anything that isn’t advertising. Both are protected, but only the latter is considered sacred, and therefore except for a few rare instances (“fire!” in a crowded theater) it’s off-limits to regulators. The distinction is so widely recognized that no one gives it much thought anymore. If you’re the CMO of an e-cigarette company, you know there are limits to what you can say in your advertising, and on your labeling and packaging. But if you’re invited to appear on 60 Minutes, or you’re interviewed by the Wall Street Journal, you’re largely free to express your personal opinions about your product. Whether or not you’re actually conscious of the fact that the former is commercial speech and the latter likely isn’t, you inherently know there’s a difference. 

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The 2014 ANA Advertising Law And Public Policy Conference Answers Many Questions, Poses Even More


By: Brian J. Meli

The 2014 ANA Advertising Law and Public Policy Conference is now officially in the books. The two-day conference held in Washington D.C. featured a formidable line-up of industry experts weighing in on a wide variety of hot-button topics in advertising law. The conference was both broad in scope and ambitious by nature, bringing practitioners up to speed on the current state of legal and regulatory affairs, and endeavoring to sketch a workable outline for what the future may hold in an industry reshaping itself daily through technology.

As you might expect from a group of speakers as varied as attorneys general, CIOs and members of academia, there were diverse viewpoints on a wide range of topics. But as the event got going, the topics began pooling into three discernable themes:

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The Most Important Question In The Michael Jordan First Amendment Case Was The One That Didn’t Get Asked

iStock_000015750550_Small By: Brian J. Meli

Last month, we looked at the Michael Jordan v. Jewel Food Stores Seventh Circuit appellate decision in some detail here. But there was more to this decision—a reversal of the district court’s finding that a tribute ad constituted fully protected First Amendment speech—than what was decided. The appeal had a favorable outcome for Jordan, who got the lower court’s decision tossed and his case remanded, and who will likely be compensated handsomely for his persistence. But did Jordan’s legal team miss an opportunity to double down on his chances for success and establish some important precedent in the process? Continue reading

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FTC Claims High Ground In Complaint Against Nissan/TBWA “Hill Climb” Spot

By: Brian J. Meli

The spot was called “Hill Climb,” but it thrust Nissan Motor Company and TBWA Worldwide into full reverse when the Federal Trade Commission (FTC) declared it deceptive and charged both the Japanese automaker and its advertising agency with violating federal consumer protection laws.

Naming TBWA as a party in its complaint was a significant move by the FTC, because it sent a clear message that the commission will continue to hold advertising agencies equally responsible for facilitating false or misleading claims when they know or should know that these claims contain material misrepresentations.

Why was this particular spot, which portrays a Nissan Frontier pickup truck racing up a precipitous sand dune to rescue a buggy, singled out in a competitive category loaded with sensational and over-the-top messaging?

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