Venable's Advertising and Marketing Group hosted its 11th Advertising Law Symposium at our offices in Washington, DC on March 20. The symposium brought together both business and legal professionals, including in-house counsel and marketing executives, to connect on trends, opportunities, and challenges in the industry. The sessions covered a breadth of interesting topics on the latest and greatest in advertising law.
If you couldn't make it, here are some themes that ran through some of the day's engaging conversations:
Navigating Shifting Landscapes
A core topic in this year's symposium was rapidly evolving regulations and technologies. Speakers addressed the changes in industries, policy, and landscapes that are most relevant to advertising law.
The new Trump administration has recently increased the executive branch's involvement in "independent" agencies. Partners Len Gordon and Megan Barbero, informed by their experiences at the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC), respectively, reflected on these changes to independent agencies, including the firing of two Democratic FTC commissioners just two days before the symposium, limiting the agency's independence. Challenges to these terminations are expected, according to the panelists, who also said the removals point to the Trump administration controlling the FTC's agenda.
A popular subject that drove engaging discussion was the use of AI in the legal field. Partner Eric Prager and associate Micah Wallen reported that that 18 state bars have updated opinions and new guidance regarding AI in the last year—and a majority of attendees reported that they have utilized AI in some capacity. As generative AI becomes more common, lawyers no longer have the option of avoiding it as a tool but should prioritize human intervention and privacy sensitivity for the most ethical AI outcomes.
Another key trend in regulation is increased state omnibus privacy laws. While these laws have similar goals, partner Rob Hartwell and associate Allie Monticollo noted the crucial differences in their requirements that could affect your company's compliance.
Clear and Conspicuous: Developments in Pricing and Autorenewal Law
With new advertising regulations coming into play each year, companies should stay updated on compliance with the most recent FTC and state law rules and litigation.
In May, the FTC Rule on Unfair or Deceptive Fees will go into effect, modifying how fees can be presented and described to consumers. Under this rule, the maximum total price of a live-event ticket or short-term lodging stay must be clearly and conspicuously displayed in a more prominent place than any other pricing information. And while this update only covers specific industries, partners Mary Gardner and Liz Reinhart and associate Jay Prapaisilp noted state laws and litigation have followed suit with similar stances applying more broadly.
Partners Ellen Berge and Ari Rothman discussed overlaps between last year's FTC Click-To-Cancel rule and similar state laws in New York and California. Going over case studies showing the increasingly active state laws and class action plaintiffs' bars on this subject, the panelists stressed that important autorenewal and subscription information must be clear and conspicuous to the point where it is unavoidable to consumers.
The Latest on PFAS in Greenwashing and Food and Beverage Litigation
When describing a product as "healthy" or "natural," companies, to avoid legal action, should be sure to consider any assumptions that may be made by a reasonable consumer—especially if there's any chance of the product or its packaging having been exposed to per- and polyfluoroalkyl substances, or PFAS. At least 12 states have banned the use of PFAS in food packaging, and the FDA may be poised for further action under the new administration.
Partners Todd Harrison and Roger Colaizzi, along with counsel William Lawrence, went over the most recent cases in food and beverage litigation, with a focus on PFAS and the important takeaways your company should make in the labeling and marketing of these products. Products exposed to PFAS in their packaging have faced challenges and class action suits for "natural" or "healthy" marketing claims. Even labeling a product as "PFAS-free" is inadvisable—in a session covering greenwashing, partners Len Gordon and Caitlin Blanche pointed out that PFAS are ubiquitous, and that claims of total avoidance could leave your company open to litigation.
Global Ad Campaigns and NAD Claims
Guests José Antonio Arochi from Arochi & Lindner and Robert Turner from Bird & Bird spoke about global ad campaigns, with a focus on their home countries of Mexico and the United Kingdom. Joined by Venable partner Melissa Steinman and associate Shannon Sansom, this panel offered insights into regulations that govern ad campaigns. Such regulations differ from country to country, especially in relation to emerging marketing tools like influencer marketing and AI.
The process of challenging and defending against claims before the National Advertising Division (NAD) was also discussed at the symposium, giving attendees a detailed breakdown of the advantages and disadvantages of engaging in self-regulation as a challenger to a competitor's advertising campaign. Using examples from their practice, partners Claudia Lewis and Shahin Rothermel stressed the importance of "doing your homework" when considering an NAD challenge, through careful review, and even contacting competitors directly about the interpretation of their advertisements.
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