Advertising Laws, areas of caution, avoiding costly pitfalls.

Are you an Internet advertiser who uses interactive 3. CAN-SPAM Act advertising, e-mail advertising or viral marketing? Or The CAN-SPAM Act establishes requirements for those who send do you use traditional media – print or broadcast – to unsolicited commercial email. let consumers know about your product or service? 4. Fair Packaging and Labeling Act Either way, there are many laws that may affect your The Fair Packaging and Labeling Act directs the FTC to issue advertising practices. regulations requiring that most consumer commodities be labeled to disclose net contents, identity of commodity, and name and place of Marketing and advertising is essential to the success of your business of the product’s manufacturer, packer or distributor. business. However, all businesses have a legal responsibility to ensure that any advertising claims are truthful, not deceptive and Specific Areas of Caution that your marketing activities don’t break the law. Children The Federal Trade Commission (FTC) oversees and regulates If you advertise directly to children or market child-related products advertising and marketing law in the United States. These laws to their parents, it is important to comply with truth-in-advertising can potentially impact many areas of your business, including how standards and the Children’s Online Privacy Protection Act. you label your products, how you conduct email and telemarketing Endorsements campaigns, any health and environmental claims you may make, as Do you use endorsements in your marketing? If so, your well as how you advertise to children. advertisements need to meet the standards of the FTC Act and At Fredrikson & Byron we can help you fine-tune your other FTC guidelines. Endorsements must reflect the honest advertisements, sweepstakes, coupons and other promotions to opinions, findings, beliefs or experience of the endorser. bring them into compliance with the law to avoid costly pitfalls. Environmental Marketing Our clients range from advertising agencies and promotional Companies are offering consumers an ever-growing assortment companies, in-house legal counsel and businesses marketing their of “green” options. That being said, regardless of whether your own products and services. environmental claims are about the product or the packaging, you will need competent and reliable scientific evidence to support what Laws you say. When consumers see or hear an advertisement, whether it is on the Health Claims Internet, radio or television, or anywhere else, federal law says that Companies must support their advertising claims with solid proof. ad must be truthful, not misleading, and, when appropriate, backed This is especially true for businesses that market food, over-the- by scientific evidence. For some specialized products or services, counter drugs, dietary supplements, contact lenses and other additional rules may apply. health-related products. 1. Section 5 of the Federal Trade Commission Act Made in USA The Federal Trade Commission Act provides that “unfair or Do you promote your products as “Made in the USA”? Under deceptive acts or practices in or affecting commerce, are hereby the law, some products must disclose U.S. content. For others, declared unlawful”. The FTC relies on the FTC Act and on other manufacturers and marketers who choose to make claims about more specific consumer protection laws in carrying out its mission. the amount of U.S. content must comply with the FTC’s Made in 2. Telemarketing and Consumer Fraud and Abuse Prevention USA policy. Act and Do-Not-Call Registry Act of 2003 The Telemarketing and Consumer Fraud and Abuse Prevention Act CONTINUED requires the FTC to promulgate regulations defining and prohibiting deceptive telemarketing acts or practices.

WHERE LAW AND BUSINESS MEET® Online Advertising and Marketing Advertisement and Copy Clearance The Internet connects marketers to customers across the country Fredrikson & Byron attorneys strive to help ensure our clients’ and around the world. If you advertise online, remember the rules advertise accurately and truthfully represent the goods and and guidelines that protect consumers and also help businesses by services marketed and reasonably comply with state and federal maintaining the credibility of the Internet as a marketing medium. In laws, broadcast advertising standards, and the requirements of addition, truth-in-advertising standards apply if you sell computers, self-regulatory bodies. Rather than just saying “no,” we help clients software, apps, or other products or services. understand potential concerns and pitfalls and work together to find an appropriate alternative. Telemarketing The FTC’s Telemarketing Sales Rule helps protect consumers from Services Provided fraudulent telemarketing calls and gives them certain protections Fredrikson & Byron works with brand owners; advertising, direct under the National Do Not Call Registry. Companies also need to marketing and sales promotion agencies; designers; illustrators; be familiar with rules banning most forms of robocalling. photographers and other businesses of all sizes throughout the Coupons and Disclaimers country. The services we offer include: A consistent, well-rounded coupon policy is important to keep • Marketing contracts customers happy and to preserve public trust in your business. In • Advertising, marketing & promotions addition, legal liability can often be avoided on your coupons by • Social media law having a good disclaimer. • Sweepstakes & Contests Law Loyalty Programs • Business formation and startup Loyalty programs are subject to a number of state laws and simply • Trademark clearance, prosecution and maintenance copying your airline’s frequent flyer program will not suffice (plus, • Trademark protection, enforcement and licensing the FAA preempts state laws, so frequent flyer programs are not • Copyright registration, protection and licensing a good model). You also need to consider practical issues, like • Advertising copy review redemption, privacy issues, gift certificate laws, unclaimed property • Sweepstakes review, rule drafting and registrations laws, and general advertising and sweepstakes laws. • Competitive advertising disputes/litigation • Trade secret protection Sweepstakes • Non-compete agreements If handled correctly, sweepstakes can be effective tools to generate • NDA agreements consumer interest, revenue and brand awareness. However, if handled improperly (for example, if structured as an illegal lottery), For More Information, they can have expensive and embarrassing repercussions. Every promotion should be governed by official rules that state all Contact 2016 INTA Attendees: material terms of the promotion, including who is eligible, how Cynthia A. Moyer Courtney A. H. Thompson to enter, what the prizes are and how much each one is worth, [email protected] [email protected] how winners are selected, how long the game will last, and what 612.492.7167 612.492.7251 restrictions may apply. John S. Parzych Ann Dunn Wessberg [email protected] [email protected] Competitive Advertising 612.492.7279 612.492.7006 Competitive advertising compares alternative brands on price or other measurable attributes, and identifies the alternative John C. Pickerill brand by name, illustration or other distinctive information. [email protected] Advertisements that attack, discredit or otherwise criticize another 612.492.7306 product are permissible if they are truthful and not expressly or impliedly deceptive.

Gift Cards Retail gift cards have become an increasingly popular way for consumers to buy things. Federal and state laws are designed to protect consumers and restrict gift card fees and expiration dates.

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