Endorsements – LegalBytes

July 31, 2018

Fake News, Troubled Celebrity Endorsements & Social Media

On Tuesday, July 24, 2018, I had the privilege of presenting a live, interactive, video-conference program and course entitled “A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media,” sponsored by Lawline.
The course was broadcast live and also recorded at Lawline’s Studio in lower Manhattan and is now available for on-demand viewing at Lawline.com. With permission, I have also posted a PDF of the PowerPoint visuals used during the presentation (although you will not be able to see the embedded videos) and you can view or download a copy for your personal use right here: A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media

As always, if you need more information, you can contact me directly (Joe Rosenbaum) or any of the Rimon attorneys with whom you regularly work.

December 13, 2017

What is an “Ad” These Days?

– Joseph I. Rosenbaum

On Friday, December 8, 2017, I had the privilege of presenting a seminar, hosted by Lawline, entitled “Augmented, Native and Interactive: The New World of Digital & Mobil Advertising.” This was broadcast live on the Web and recorded for subsequent on demand viewing and was my second presentation at Lawline. The first “Online & Mobile Digital Interactive Advertising: Video Games, Branded Entertainment, Native Advertising and Beyond” remains available as a web-based, on demand offering at Lawline.

This seminar provided an update on many of the concepts and principles discussed in the first program, including some basic principles of advertising law that applies in both the traditional and digital/mobile environment and provided updated information on game advertising – both advertising the game and in-game advertising – as well native advertising and guidance from the Federal Trade Commission. This recent session also delved into a number of digital and mobile advertising issues that were not part of the first presentation, such as celebrity endorsements, bloggers, experts & consumer testimonials in social media, augmented reality and advertising in virtual worlds, programmatic buying and the current tensions in the industry concerning transparency and relationships between advertisers and integrated agencies. You can view the slide images of my presentation “The New World of Digital & Mobil Advertising” and, of course, you can view the recorded session which is available exclusively through Lawline.

As always, if you need assistance or require any additional information, feel free to contact me, Joe Rosenbaum, at Rimon, P.C.

January 19, 2016

The Paradox of Illumination

I first heard about the paradox of illumination from Lee Loevinger, an extraordinary gentleman I was privileged to know professionally. Lee was a multi-faceted, multi-talented, thought-provoking lawyer whose sage advice and stimulating ideas continue to resonate with those honored to have known him, and everyone else wise enough to read his work and the words he left behind.

In a nutshell, the paradox of illumination is extraordinarily complex, but simple to describe. Much like Albert Einstein who, when asked about his theory of relativity and the notion that time is not constant, described it in personal terms: if a man is at dinner for 10 minutes with a beautiful woman, it seems like a fleeting instant; but sit on a burning hot stove for 10 minutes and it seems like an eternity :).

The paradox of illumination can similarly be described on a personal level. Sit in completely dark room. Really. Completely dark. What can you see? Nothing. You know little about your surroundings and can only sense your own body – in fact, you don’t even know how far your surroundings extend beyond your immediate sensations.

Now light a match. The circle of illumination allows you to see a little of what is around you – but the perimeter and beyond are still dark. Now light a candle. The circle of what you can see illuminated by the light is larger than before, but the size of the perimeter beyond which you cannot see is also a lot larger than before. The larger the light, the larger the area of illumination, but larger by far is the perimeter beyond which we know nothing.

The more we can see and the more we know and understand about the world around us, the larger the amount becomes that we don’t know. In other words, as the circle of our knowledge grows, so does the amount of knowledge we cannot see and don’t know. The paradox of illumination is the paradox of knowledge. Perhaps that is why Michelangelo, when he was more than 87 years old, still said, “Ancora Imparo” (I am still learning).

June 5, 2015

FTC Updates Its FAQs for Endorsement Guides

The Federal Trade Commission has just updated its version of Frequently Asked Questions, or FAQs, that relate to the “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that went into effect December 1, 2009. You can find the updated FTC website page right here “What People Are Asking.”

If you are a loyal Legal Bytes’ reader, you know we have been following this since as early as November 2008, when we posted Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes, and numerous updates and informational pieces have graced these pages since then (now when we say “pages,” we mean web pages). You can refer back to any or all of them, or you can check out any you may have missed right here: FTC Testimonial and Endorsement Guides Stimulate Industry Comment (March 2009); a presentation given at the University of Limerick on the subject entitled “Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States,” which you can download; Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?) and Rights of Publicity – Wake Up and Smell the Coffee! (both in August 2009); and FTC Releases Updated Endorsement & Testimonial Guidelines and Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines (both in October 2009).

In December 2009, Legal Bytes posted another thoughtful and practical analysis FTC (Revised) Endorsement Guides Go Into Effect, written by John P. Feldman, so you know Rimon is following and keeping up with developments as they occur.

So, if you want to know more or have questions, please do not hesitate to contact me, or any Rimon attorney with whom you regularly work.

January 27, 2011

That Face is Written All Over Your Expression – Facebook Adds Ads

Hi. Do you like Legal Bytes? Have you told friends about Legal Bytes? Shared the link www.LegalBytes.com with at least 10 friends and colleagues? Have you told anyone about an article, a Useless But Compelling Fact or perhaps a Light Byte on Legal Bytes? Well, have you? I mean do you REALLY like Legal Bytes? If you do, please click the icon now:

What? Nothing happened? Well, that’s right. Nothing happened. Sorry to disappoint you, but aside from the satisfaction of reading very exciting and timely postings; thoroughly enjoying the insights; admiring the wit and wisdom of the authors and editor; and, we hope, feeling enlightened and mildly entertained – this is, after all, a legal website, and you get nothing. We don’t even publish comments or invite debates – that’s not what Legal Bytes is about. Oh, and we don’t use your name or email address. We just want you to read, and we thank you!

Not so any more on Facebook; and although I have been given absolutely nothing and have had no contact with any of the following companies about this or any other blog posting, here goes:

Have you been posting nice things on your friends’ Facebook pages about your morning Starbucks coffee or perhaps checking in at Steamboat Springs, eager to hit the slopes? Have you felt compelled to comment to a Facebook friend that you just bought a new General Motors Cadillac and how great it now looks and drives? Has your Twitter feed, your LinkedIn comment, or your Digg dig shown up on Facebook, remarking about the lovely feel of Proctor and Gamble’s Charmin bathroom tissue? Perhaps you have been browsing the official Facebook pages of MTV or Coca-Cola, or marveling at Kellogg’s Cares? Like what you see? Well just click the "Like" icon at the top of those pages to let them and the world know.

Advertisers will now be able to take your nice posts, comments, remarks and words – those messages posted about brands – or your "like" clicks, and turn them into advertisements and "sponsored stories" for your friends to see. Although they won’t be edited – not even the advertiser will be able to do that – postings on your wall that now show up on your "friends’" news feeds will now also show up on your friends’ home page, right along with the other advertisements – more noticeable and conspicuous to be sure.

Although you won’t be notified it’s happening and you can’t opt out, don’t worry about someone stealing your words or preferences. The ad will have your name and profile photo, and will appear as an advertisement, along with the others, only now labeled as a "Sponsored Story." Going one better than "word of mouth," your posts, your check-ins and your likes will be as plain as the expression on your Facebook. According to what we have read, Facebook has stated that "A sponsored story never goes to somebody who’s not one of your friends."

So far the griping has not been whether Facebook has the right, or even about keeping the ads limited to Facebook "friends" who already can see your postings. It’s been about not being told that my "check-in," which enables me to connect with others while I’m on the move, is now going to be used to "promote" the places I check into – without my approval or without me necessarily knowing. If my neighborhood diner is going to get an endorsement (explicitly or implicitly), do I get royalties (or a complimentary egg-white omelet)? Listen up, Converse, I need a new pair of sneakers.

February 25, 2010

Online Endorsements, Testimonials and Reviews Fake? Really?

Online ratings got you perplexed? Seems like someone forgot to put “user ratings” on the list of reality shows. Well maybe, just maybe, those user ratings aren’t really “user” or “ratings” at all. What should you consider?

Well, on October 23, 2009, Joe Rosenbaum was interviewed by Sally Herships for Marketplace Money, a regular feature of Public Radio. If you missed it on the air, you can now listen to the audio, read a transcript of the interview, download an MP3, or subscribe to the podcast, by checking out the interview at: “Don’t let online reviews fake you out.”

Legal implications abound—for website operators and ratings’ services that enable users to post reviews and content, as well as for anyone posting fake reviews or failing to disclose a material connection to the advertiser, its brands or products. So go listen and then come back if and when you need legal support. Contact Joe Rosenbaum, or the Rimon attorney with whom you regularly work.

December 2, 2009

FTC (Revised) Endorsement Guides Go Into Effect

This post was written by John Feldman.

Yesterday, Dec. 1, 2009, the revised “Guides Concerning the Use of Endorsements and Testimonials in Advertising” released by the Federal Trade Commission came into effect. If you are a loyal Legal Bytes’ reader, you know we have been following this as early as November 2008, when we posted Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes. Numerous updates and informational pieces have graced these pages since then (now when we say “pages,” we mean web pages), and you can refer back to any or all of them, or you can check out any you may have missed right here: FTC Testimonial and Endorsement Guides Stimulate Industry Comment (March 2009); a presentation given at the University of Limerick on the subject entitled “Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States,” which you can download (If You Didn’t Make It to Ireland …); Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?) and Rights of Publicity – Wake Up and Smell the Coffee! (both in August 2009); and FTC Releases Updated Endorsement & Testimonial Guidelines and Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines (both in October 2009).

Yesterday, John P. Feldman, an authority in these types of advertising regulations and compliance and who is based in Washington, D.C., put together some thoughts concerning the implications of these Guides upon coming into effect, continuing his thoughtful and practical analysis. While we will maintain bringing you news and information about the Guides, John’s analysis is timely and helpful, and outlines some considerations every advertiser – online, in social media and off-line – and every blogger, viral marketer, celebrity endorser or consumer making a testimonial, should take into account. John’s analysis, which you can download and read in its entirety by selecting the link below, asks and answers the following questions about these Guides:

What does this mean for advertisers?
What is the most dramatic shift in enforcement policy?
What will this mean for advertisers that use celebrity endorsers?
How much control should sponsoring advertisers exercise over endorsers in new media channels?
What impact will the FTC’s new approach to clinical trials have on the OTC, cosmetic, and pharmaceutical industry?
Is there a role for self-regulation and what do you make of the proposed “best practices” recently announced by the Word of Mouth Marketing Association (WOMMA)?

You can download your own copy of John’s analysis or you can read it online right here: “FTC Endorsement Guides (Revised) – Some Thoughts As They Become Effective“. You won’t be disappointed. In addition, if you want to know more about these issues or have questions about your particular circumstances, please do contact John P. Feldman directly, or you can call Joseph I. Rosenbaum or Douglas. J. Wood or, of course, any Rimon attorney with whom you regularly work.

October 8, 2009

Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines

A few days ago, Legal Bytes alerted you to the fact that the Federal Trade Commission has issued revised "Guides Concerning the Use of Endorsements and Testimonials in Advertising". These revisions update the FTC’s Guides, last modified in 1980, that provide direction to advertisers and agencies regarding compliance with the FTC Act.

John P. Feldman, a partner in our Washington, D.C. office and a key member of our Advertising Technology & Media law team, has prepared (and you can view and download) an Analysis of the New Guides. Of course, no memorandum prepared for general information or a summary of this type can provide legal advice, and you should be careful not to rely on it since everyone’s circumstances and the facts of each situation will differ – at a minimum, based on the type of product or service, the target audience, and the advertising media, among other things. That said, the summary will give you a good overview of what is in the Guides and what is different or updated from the prior Guides.

Of course, if you need specific guidance or need to know more about the FTC Guides, or the implications to social media advertising and marketing or traditional advertising, feel free to contact John P. Feldman, Douglas J. Wood or Joseph I. Rosenbaum, or the Rimon attorney with whom you regularly work.

October 5, 2009

FTC Releases Updated Endorsement & Testimonial Guidelines

Although it will be published in the Federal Register shortly, you can download and read the text of the Federal Trade Commission’s revised "Guides Concerning the Use of Endorsements and Testimonials in Advertising" issued earlier today, right on Legal Bytes now. As reported previously in Legal Bytes, the final revisions are intended to update the FTC’s guidance, last revised in 1980, that provide advice to advertisers and agencies regarding compliance with the FTC Act.

While the prior guidelines allowed advertisers to use a “results not typical” disclaimer, that is no longer a safe haven from liability, and advertisers will be required to disclose what a consumer should generally expect when purchasing or using the product. Furthermore, any connection that a consumer might not reasonably know between an advertiser and an endorser needs to be disclosed. In recent years, comments by bloggers, through word of mouth, buzz or viral marketing were never addressed in the Guides. The updated version now deals with and provides examples of when these rise to a level of connection requiring disclosure.. For example, if a blogger receives any consideration in cash or in kind (e.g., free gaming console to try) to review products or services, that would now be considered an endorsement that requires disclosure – even if the review remains unbiased.

The fact that a consumer should be informed about a material connection between the advertiser and the maker of the statements is now firmly embedded in the FTC Guides, even though these cases were always subject to review on a case-by-case basis. Of course, what constitutes a “material” connection will still be subject to a factual determination, but if a company, for example, sponsors research about its products or services (or potentially about the products or services of a competitor, if the results will be used in a comparative ad), then the company must disclose its sponsorship in the ad. Similarly, although consumers may expect celebrities to be paid for appearing in commercials, if an endorsement is made outside that context – for example, on a talk show, at a book signing, at a motion picture premiere, or on Facebook, Twitter or other social media – any material relationships must be disclosed.

The proposed new guidelines were the subject of a seminar, "Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States", presented by Joseph I. Rosenbaum, at the University of Limerick in July. You can go to the previous Legal Bytes blog post and download a copy of the presentation at any time. "

Want to know more about the FTC Guides, or the implications to social media advertising and marketing, or traditional advertising? Feel free to contact me or the Rimon attorney with whom you regularly work.