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lumosity

The human brain, with its billions of neurons and trillions of neural pathways, is thought to be able to process terabytes worth of information. Impressive as that might be, our brains cannot intuitively distinguish between health and wellness advertising containing scientifically proven efficacy claims and advertising that isn’t actually backed by sound medical research. The Federal Trade Commission (FTC), aware of this limitation, requires that all health claims be supported by competent and reliable scientific evidence.

Unfortunately, that’s where the popular brain training company Lumosity seems to have, if you’ll pardon the expression, had a brain fart.

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Tagged brain games, computer-based cognitive training, FTC, Lumosity, neuroscience, prior substantiation

Jul 06 2015

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Advertising Matter, Commercial Matter

Coffee Talk Regulation: The FTC Struggles (Like The Rest Of Us) With The Commercial Speech Question

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By: Brian J. Meli

Returning to our long-running question of what constitutes commercial speech in the modern era (i.e. the era of advertising masquerading as “content”), we turn our attention to recent happenings over at the Federal Trade Commission (FTC), that august institution tasked with protecting we the people from all things false, deceptive and misleading in advertising. The FTC recently became the latest organization to publicly grapple with the question of where the line between First Amendment protected non-commercial speech, and regulation-vulnerable commercial speech exists. For a look back at how the Supreme Court has dealt with the subject, and more recent Seventh Circuit and Ninth Circuit interpretations, follow the links.

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Tagged ANA, commercial speech, Division of Advertising Practices, FTC, Genesis Today, Green Coffee Bean Extract, Inc., Joshua Wright, Laura Sullivan, Lindsey Duncan, Maureen Ohlhausen, non-commercial speech, Pure Health LLC, stipulated order, The Dr. Oz Show, The View

Apr 06 2015

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Advertising Matter, Commercial Matter, Technology Matter

What Every Advertiser (And Ad Agency) Needs To Know About The FCC’s New Net Neutrality Rules, But Probably Doesn’t

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By: Brian J. Meli

As the smoke settles from the Federal Communications Commission’s recent decision to reclassify broadband service as a utility, and the tempest that is the net neutrality debate fades from the 24-hour news cycle, one could be forgiven for thinking it’s back to business as usual for broadband Internet service providers (ISPs). It’s also tempting to assume—what with net neutrality charting new highs in search volume, and Google News returning more than two million hits for the term—that everything worth writing about the subject has been written, several times over. But as we await the first lawsuits challenging the FCC’s authority to turn the broadband offerings of Comcast, Time Warner, AT&T & Co. into utility services, and the reinvigorated debate that comes with them, it’s important to understand that there’s more to this story than just making the Internet a more equal place. If you’re in the marketing or advertising business, a lot more. Because the FCC’s new Open Internet Order may soon bring changes to the way you do your job. Here’s how:

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Tagged advertising, analytics, big data, common carrier, Communications Act, CPNI, FCC, FTC, FTC Act, information provider, ISP, net neutrality, Open Internet Order, TerraCom, YourTel

Dec 10 2014

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Advertising Matter, Commercial 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-FTC hearts 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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Tagged Advertising Disclosures, Clear and Conspicuous, FTC, Operation Full Disclosure, performance standard, The Four P's

May 12 2014

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Advertising Matter, Commercial Matter, IP Matter

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

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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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Tagged Bolger v. Young's Drug Products, Catherine Heigl, cause-related marketing, Cole Haan, commercial speech doctrine, Creative Commons, FDA, free speech, FTC, Getty Images, native advertising, non-commercial speech, UTEC

Aug 07 2013

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Advertising Matter, Commercial Matter

Curing A Common Headache: Healthy Habits In Health And Wellness Advertising

By: Brian J. Meli

The healthcare industry is hands down the most regulated on the planet; and for many a good reason. As healthcare costs seem to be on an irrevocable ascent into the firmament, cracking down on anti-competitive behavior among healthcare providers is priority 1A of regulators. Last year, nearly half of all antitrust enforcement actions filed were against healthcare companies, according to the Federal Trade Commission’s annual report. But unfair competition is only part of the government’s oversight of the industry. Regulatory priority 1B, if you will, is protecting consumers from deceptive trade practices; a pursuit that extends well beyond the boundaries of the traditional healthcare sector.

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Tagged deceptive trade practices, efficacy claims, false advertising, false and misleading advertising, FDA, food and drug administration, FTC, health claims, healthcare advertising, ood and Drug Administration

May 13 2013

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Advertising Matter, Commercial Matter, Technology Matter

What The New FTC Disclosure Guidelines Mean For Your Business

By: Brian J. Meli

Last month, the Federal Trade Commission (FTC) issued updated disclosure guidelines for online advertisers to help ensure compliance with truth in advertising laws. The new guide, .com Disclosures – How to Make Effective Disclosures in Digital Advertising, is an overdue update to the agency’s initial Dot Com Disclosures guide, disseminated well before smartphones, tablets and social media came onto the scene. While advertising disclosures are, by their fact-dependent nature, hard to standardize, the new guide does an adequate job of clarifying what is and is not acceptable given all the new ways advertisers are using the Internet. The following is an overview of some of the things you need to know before advertising online.

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Tagged .com disclosures, consumer protection laws, digital advertising, disclosure guidelines, FTC, truth in advertising

Mar 28 2013

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Advertising Matter, Commercial Matter

Content Marketing And The Great Commercial Blur

By: Brian J. Meli

Back in the quaint old days of the the 1970’s and early 80’s, when the Internet was still a college science project and social networking was something you did around a water cooler, the US Supreme Court decided a series of First Amendment cases that established the modern-day boundaries between inviolate non-commerical speech (personal, religious, political speech) and less revered, but still important commercial speech.

The result was a distinction between communication that’s subject to government restriction on the basis that it’s false or misleading (commercial), and speech that’s beyond the reach of regulation no matter how untrue or inaccurate it may be (non-commerical). It’s a distinction—and a precedent—that still stands today, nearly 40 years and numerous technological revolutions later. But the longevity of the distinction has less to do with the clarity of the decisions that formed it, and more to do with the Supreme Court resisting reexamination of an issue that, now more than ever, demands drawing boundaries between concepts that can be almost impossible to distinguish, let alone define. Continue reading →

Tagged 1st amendment, Bolger test, central hudson gas, commercial speech, content marketing, free speech, FTC, Kasky v. Nike Inc.

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Legalmatter

The Stuff of Commerce, Technology and Intellectual Property Law

Tag Archives: FTC

Cognitive Dissonance: The Government’s Case Against Lumosity And The Science Behind Brain Training

Coffee Talk Regulation: The FTC Struggles (Like The Rest Of Us) With The Commercial Speech Question

What Every Advertiser (And Ad Agency) Needs To Know About The FCC’s New Net Neutrality Rules, But Probably Doesn’t

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

Curing A Common Headache: Healthy Habits In Health And Wellness Advertising

What The New FTC Disclosure Guidelines Mean For Your Business

Content Marketing And The Great Commercial Blur

The Stuff of Commerce, Technology and Intellectual Property Law

Tag Archives: FTC

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