Barry Benjamin
United States
Kilpatrick Townsend’s Advertising, Privacy, and Promotions practice: Advice/Counseling; Claim Substantiation; Litigation/NAD; FTC/State AG Defense; Sweepstakes
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Articles by Barry Benjamin
NAD Puffery Decisions Show Why Advertising Context Matters | JD Supra
Sometimes advertising is like real estate, where the three most important things are: location, location, location. In advertising, it is often: context, context, context. And never more so than with puffery. Two recent National Advertising Division (NAD) decisions provide a useful reminder that what an advertiser puts around superlative claims-that is, the context-is key to determining whether the claims are mere puffery or require substantiation.
NAD Puffery Decisions Show Why Advertising Context Matters
Sometimes advertising is like real estate, where the three most important things are: location, location, location. In advertising, it is often: context, context, context. And never more so than with puffery. Two recent National Advertising Division (NAD) decisions provide a useful reminder that what an advertiser puts around superlative claims—that is, the context—is key to determining whether the claims are mere puffery or require substantiation.
Social Clipping and Influencer Marketing: Key Legal Risks
Because clipped videos often look like authentic fan content, even when they are part of paid marketing campaigns, they blur the line between independent expression and advertising. So, are existing advertising rules flexible enough to cover social clipping?
Loot Box Litigation Intensifies as Valve Fights Gambling Claims
The legal battles over loot boxes continue, with gaming companies vigorously defending the use of randomized in-game rewards against allegations that they constitute unlawful gambling. In a closely watched case pending in the U.S. District Court for the Western District of Washington, lawyers for plaintiff-gamers have urged the court to reject Valve Corporation’s motion to dismiss a proposed class action alleging that the company’s loot box system violates Washington gambling laws.
Loot Box Litigation Intensifies as Valve Fights Gambling Claims
The legal battles over loot boxes continue, with gaming companies vigorously defending the use of randomized in-game rewards against allegations that they constitute unlawful gambling. In a closely watched case pending in the U.S. District Court for the Western District of Washington, lawyers for plaintiff-gamers have urged the court to reject Valve Corporation’s motion to dismiss a proposed class action alleging that the company’s loot box system violates Washington gambling laws.
Principal Media and Media Agency Contracts: Lessons From the Recent ANA Survey
Given the changes in the advertising world concerning media buying over the past decade, it is somewhat surprising to see that in a recent survey, nearly 40% of client-side marketers said they either have not updated their media buying agency contracts to address principal media, or do not know whether they did.
Event in Review | Ad Agency Contracts: Key Negotiating Points, Leverage, and Getting to Win-Win
Advertising agency agreements require careful balancing of legal risk, commercial realities, and long-term working relationships. In a recent webinar, Venable partner Barry M. Benjamin discussed how brands and agencies can structure agreements that support collaboration while addressing the unique issues that arise in creative services, media buying, influencer marketing, and promotions administration.
Skill-Based Gaming Companies Face Growing False Advertising Scrutiny
Last month, a jury found mobile gaming company Papaya Gaming Ltd. liable for false advertising for $420 million in actual damages under the federal Lanham Act and New York State law. Papaya competitor Skillz Platform Inc. had alleged that Papaya conducted a multi-year campaign of fraud and false advertising that materially damaged Skillz and the skill-based gaming industry.
Skill-Based Gaming Companies Face Growing False Advertising Scrutiny
Last month, a jury found mobile gaming company Papaya Gaming Ltd. liable for false advertising for $420 million in actual damages under the federal Lanham Act and New York State law. Papaya competitor Skillz Platform Inc. had alleged that Papaya...
U.S. vs. UK Contract Law in Advertising Agency Agreements Explained
Negotiating a cross-border, U.S./U.K. advertising agency services agreement adds some additional wrinkles to the already well-wrinkled list of considerations for every ad agency contract. Obviously, extra consideration must be paid to things like privacy and data security, but more prosaic considerations include termination with/without cause, choice of law, and whether to arbitrate disputes.
U.S. vs. UK Contract Law in Advertising Agency Agreements Explained
Negotiating a cross-border, U.S./U.K. advertising agency services agreement adds some additional wrinkles to the already well-wrinkled list of considerations for every ad agency contract. Obviously, extra consideration must be paid to things like...
5 Key Takeaways | Navigating False Advertising Litigation Challenges, Strategies, and Risk Mitigation | JD Supra
Barry M. Benjamin, Managing Partner of the New York office and Chair of Kilpatrick’s Advertising and Marketing group, was honored to co-present with Andrew Lustigman of Olshan law, a discussion of how to engage and strategize around false advertising challenges, for MyLawCLE.
New York Governor Signs Bill Requiring Disclosure of AI-Generated Performers in Advertising | JD Supra
Continuing its efforts to protect the residents of New York State from the potential ravages of artificial intelligence, New York’s Governor Kathy Hochul this month signed S.8420-A into law, a bill that requires advertisements to conspicuously disclose the use of synthetic performers and imposes civil penalties for non-compliance.
5 Key Takeaways | The Essentials of Advertising Claims Substantiation | JD Supra
Kilpatrick’s Barry Benjamin and Bryan Wolin were honored to participate in the firm’s long-running IP Innovation webinar series, with a presentation on December 3, 2025, covering the essentials of advertising claims substantiation. Here are five key takeaways from their talk. 1.
California’s Extended Producer Responsibility Law: Reporting Deadline of November 15, 2025 | JD Supra
Like other state-specific Extended Producer Responsibility (EPR) laws (e.g., Minnesota, Oregon), California’s Plastic Pollution Prevention and Packaging Producer Responsibility Act shifts the end-of-life costs of managing, processing, and recycling certain covered materials from taxpayers to the businesses that control the generation or use of these materials.
5 Key Takeaways | 2025 ANA Masters of Advertising Law Conference | JD Supra
Kilpatrick’s advertising law team attended the “2025 ANA Masters of Advertising Law Conference” in Chicago from November 3-5. Kilpatrick lawyers Barry Benjamin and Bryan Wolin were honored to present on the topic of social media takedowns, joined by Mannu Harnal (Associate General Counsel – Head of Intellectual Property & Business Affairs, CELSIUS Holdings, Inc.) and Tali Alban (Senior Counsel, Marketing & Community Operations, Uber) for a panel discussion.
The recent 2025 NAD Conference provided a deep dive into many areas of advertising law. While a few sessions discussed the obvious hot-button topic of the year—artificial intelligence—there were many other timely topics covered in both substantive and entertaining detail. As a long-time sponsor of the conference, Kilpatrick’s Advertising and Marketing team prepared the following summary of the top advertising law issues covered at the conference. 1.Influencer Marketing.
Don’t confuse a promise with a check: the high stakes of conflating fiduciaries with independent directors
Investors should increase hedge fund exposure as alpha for top managers rises — BlackRock The BlackRock Investment Institute finds that top-end hedge fund managers have been delivering more alpha since 2020 and argues for increasing allocations to hedge funds.
5 Key Takeaways Global Compliance and Sustainability Green Claims in Fashion Law | JD Supra
As part of a three-part series on Fashion Law, Barry M. Benjamin, managing partner of Kilpatrick’s New York office and chair of its Advertising and Marketing group, and Bryan Wolin, also part of Kilpatrick’s Advertising and Marketing group and resident in Kilpatrick’s New York office, presented a session on Global Compliance and Sustainability in Fashion.
Minnesota's Extended Producer Responsibility (EPR) Law: Key Registration Deadline is July 1, 2025; Specifically Includes Boat Wrap Producers | JD Supra
Minnesota was the fifth state to enact an Extended Producer Responsibility (“EPR”) law, following California, Colorado, Oregon, and Maine. Sharing many foundational principles with the EPR laws in these other states, your business may be required to register by today, July 1, 2025, under this law if you are a brand owner that controls the manufacturing of its products, operates in the packaged goods space, or influences the retail or shipping packaging of products going into Minnesota.
Influencers on the "Free Stuff" Train Require Monitoring for False Claims | JD Supra
A recent National Advertising Division (NAD) decision provides a warning that sending free stuff to influencers may make you responsible for what those influencers say, even without a formal relationship between the brand and the influencer.
Event Takeaways: Tech Market Trends and Uncertainties | JD Supra
The Kilpatrick New York office hosted a roundtable discussion on April 30th focused on emerging trends in the tech market and strategies for navigating market uncertainty. The event featured Kilpatrick partners Barry Benjamin and Brian Axelrad, alongside distinguished guest speakers Moshe Bellows (Managing Partner at Maccabee Ventures), Richard Kestenbaum (Partner at Triangle Capital), and Paul Greenberg (CEO at Butter Works).
Oregon’s Extended Producer Responsibility Law: Registration & Reporting Deadline Extended to April 30, 2025 | JD Supra
If your business is a brand owner that controls the manufacturing of its products, operates in the packaged goods space, or influences the retail or shipping packaging of products, you may be subject to state-specific Extended Producer Responsibility (“EPR”) laws. We previously reported on Oregon’s March 31, 2025 deadline to register and report the volume of 60 different categories of covered materials. However, that deadline has been extended by a month—until April 30, 2025.
Oregon’s Extended Producer Responsibility Law: Registration & Reporting Deadline Extended to April 30, 2025
If your business is a brand owner that controls the manufacturing of its products, operates in the packaged goods space, or influences the retail or shipping packaging of products, you may be subject to state-specific Extended Producer Responsibility (“EPR”) laws. We previously reported on Oregon’s March 31, 2025 deadline to register and report the volume of 60 different categories of covered materials. However, that deadline has been extended by a month—until April 30, 2025.
Printed Paper, Food Serviceware, and Packaging Producers Required to Register and Report in Oregon by March 31, 2025.
For the past four years, multiple states have worked to pass laws (called Extended Producer Responsibility laws, or “EPR”) that reallocate the burden of dealing with end-product waste (and related recycling efforts) to the companies that first produce—or control production of—materials, instead of obligating end-users to deal with such waste. Oregon passed its EPR law, the Plastic Pollution and Recycling Modernization Act (“RMA”), in 2021.
Key Takeaways from Frontlines of Ad Campaigns Gone Wrong and Critical Claim Substantiation Missteps
Click here to watch the video Barry M. Benjamin, managing partner of Kilpatrick’s New York office and chair of its Advertising and Marketing group, was honored to present alongside La Toya Sutton of the Clorox Company, at the American Conference Institute’s 8th Annual Legal, Regulatory, and Compliance Forum on Advertising Claim Substantiation.
Takeaways | Key Takeaways from the Frontlines of Ad Campaigns Gone Wrong and Critical Claim Substantiation Missteps | JD Supra
Barry M. Benjamin, managing partner of Kilpatrick’s New York office and chair of its Advertising and Marketing group, was honored to present alongside La Toya Sutton of the Clorox Company, at the American Conference Institute’s 8th Annual Legal, Regulatory, and Compliance Forum on Advertising Claim Substantiation.
Companies Breathe Easy: FTC Declines to Classify Children's Avatars as Personal Information—For Now | JD Supra
On January 16, 2025, the Federal Trade Commission (FTC) published its Final Rule officially adopting updates to the Children’s Online Privacy Protection Act (COPPA). For a comprehensive overview of these changes, be sure to watch out for our upcoming alert. A key question for industry stakeholders was whether avatars would fall under the definition of “personal information” in the Final Rule.
How to Help Marketing Clear the IP Hurdle
Original artwork by Bussolati.com Medium matters. The speed of social media is double-edged; infringement may be noticed immediately, but it’s also easy to delete a post. Copyright clearance. Consider who owns the copyright in the work, the type of work, and whether it incorporates third-party materials. Trademark clearance. Identify all trademarks used in the work, including word marks, service marks, and any other distinctive name. Celebrity clearance.
5 Key Takeaways - Marketing to Kids: New U.S. Privacy and Social Media Safety Laws Impact Advertising Compliance | JD Supra
With increasing scrutiny on how companies handle personal data of children under 18, several new laws are reshaping the legal landscape. Even companies that may not intend to direct their services to children still need to be vigilant. Recent laws, coupled with FTC enforcement actions, as well as new federal and state legislation on the immediate horizon, underscore the importance of securing valid consent and minimizing the collection and processing of minors’ data.
5 Key Takeaways | Marketing to Kids: New U.S. Privacy and Social Media Safety Laws Impact Advertising Compliance
With increasing scrutiny on how companies handle personal data of children under 18, several new laws are reshaping the legal landscape. Even companies that may not intend to direct their services to children still need to be vigilant. Recent laws, coupled with FTC enforcement actions, as well as new federal and state legislation on the immediate horizon, underscore the importance of securing valid consent and minimizing the collection and processing of minors’ data.
New State EPR Laws Regulate Manufacturers, Brand Owners, and Others Who Control Packaging Materials; Registration Required in Colorado as of October 1, 2024 | Kilpatrick - JDSupra
Does your company produce products or packaging that ultimately winds up in landfills? If so, are you aware that you may be defined as a “producer” under new state laws and required to comply with new regulations to reduce the flow of garbage headed to landfills? Until recently, solutions to reduce garbage headed to landfills have been focused on the end-of-life stage; that is, how to recycle items otherwise headed to the landfills.
New State EPR Laws Regulate Manufacturers, Brand Owners, and Others Who Control Packaging Materials; Registration Required in Colorado as of October 1, 2024
Does your company produce products or packaging that ultimately winds up in landfills? If so, are you aware that you may be defined as a “producer” under new state laws and required to comply with new regulations to reduce the flow of garbage headed to landfills? Until recently, solutions to reduce garbage headed to landfills have been focused on the end-of-life stage; that is, how to recycle items otherwise headed to the landfills.
5 Key Takeaways - Puffery Versus Objective Claims in Advertising: Five Takeaways from the 2024 National Advertising Division Annual Conference | JD Supra
Barry M. Benjamin, managing partner of the New York office and chair of Kilpatrick’s Advertising and Marketing group, was honored to participate recently on a panel at the BBB National Program’s National Advertising Division’s 2024 Annual Conference, discussing puffery in advertising.
5 Key Takeaways | Puffery Versus Objective Claims in Advertising: Five Takeaways from the 2024 National Advertising Division Annual Conference
Barry M. Benjamin, managing partner of the New York office and chair of Kilpatrick’s Advertising and Marketing group, was honored to participate recently on a panel at the BBB National Program’s National Advertising Division’s 2024 Annual Conference, discussing puffery in advertising.
Data Licensing: Five Takeaways from the New York City Bar Association’s Continuing Legal Education Program on Intellectual Property Licensing 101 | JD Supra
Barry M. Benjamin, managing partner of the New York office and chair of Kilpatrick’s Advertising and Marketing group, was honored to present on September 13 at the New York City Bar Association’s continuing legal education program, Intellectual Property Licensing 101. The session covered data licensing and discussed the two primary issues—how to protect data as an asset, and how to license data.
Data Licensing: Five Takeaways from the New York City Bar Association’s Continuing Legal Education Program on Intellectual Property Licensing 101
Barry M. Benjamin, managing partner of the New York office and chair of Kilpatrick’s Advertising and Marketing group, was honored to present on September 13 at the New York City Bar Association’s continuing legal education program, Intellectual Property Licensing 101. The session covered data licensing and discussed the two primary issues—how to protect data as an asset, and how to license data.
5 Key Takeaways - Hot Topics in Advertising Claim Substantiation | JD Supra
Barry M. Benjamin, managing partner of the New York office and chair of Kilpatrick’s Advertising and Marketing group, was honored to host a continuing legal education program alongside Laura Brett, head of the National Advertising Division of the BBB National Programs, on "Hot Topics in Advertising Claim Substantiation." The session focused on the NAD background and challenge process, sustainability claims, and substantiation testing issues for advertising claims.
T-Mobile NAD Challenge of Charter Advertising Results in Referral to FTC Upon Charter Declining to Participate | JD Supra
The National Advertising Division (“NAD”) has referred two advertising claims made by Charter Communications to the Federal Trade Commission (FTC) after Charter declined to participate in self-regulatory challenges to those claims filed by T-Mobile. T-Mobile provides, among other things, home internet connection through its 5G Home Internet (“T-HINT”) product, while Charter sells competing home internet service.
T-Mobile NAD Challenge of Charter Advertising Results in Referral to FTC Upon Charter Declining to Participate
The National Advertising Division (“NAD”) has referred two advertising claims made by Charter Communications to the Federal Trade Commission (FTC) after Charter declined to participate in self-regulatory challenges to those claims filed by T-Mobile. T-Mobile provides, among other things, home internet connection through its 5G Home Internet (“T-HINT”) product, while Charter sells competing home internet service.
New York Attorney General Has Beef With Meat Company's Aspirational Green Advertising Claims | JD Supra
New York Attorney General Letitia James has filed a lawsuit against JBS USA Food Company and JBS USA Food Company Holdings (“JBS”), subsidiaries of a Brazilian company, the world’s largest beef and poultry producers, for deceptive environmental marketing. Despite a pledge to achieve net zero greenhouse gas emissions by 2040, James asserts that JBS has no viable plan to reach net zero greenhouse emissions and is flipping the truth like a burger on a grill.
New York Attorney General Has Beef With Meat Company's Aspirational Green Advertising Claims
New York Attorney General Letitia James has filed a lawsuit against JBS USA Food Company and JBS USA Food Company Holdings (“JBS”), subsidiaries of a Brazilian company, the world’s largest beef and poultry producers, for deceptive environmental marketing. Despite a pledge to achieve net zero greenhouse gas emissions by 2040, James asserts that JBS has no viable plan to reach net zero greenhouse emissions and is flipping the truth like a burger on a grill.
Complying with the Children's Online Privacy Protection Rule; FTC’s Proposed Updates | JD Supra
On December 20, 2023, the Federal Trade Commission (FTC) published a Notice of Proposed Rulemaking (Proposed Rule) seeking to update the Children’s Online Privacy Protection Act (COPPA), which would place new restrictions on the use and disclosure of children’s personal information.
Complying with the Children's Online Privacy Protection Rule; FTC’s Proposed Updates
On December 20, 2023, the Federal Trade Commission (FTC) published a Notice of Proposed Rulemaking (Proposed Rule) seeking to update the Children’s Online Privacy Protection Act (COPPA), which would place new restrictions on the use and disclosure of children’s personal information.
10 Key Takeaways - Reflections on the 2023 ANA Masters of Advertising Law Conference | JD Supra
The ANA Masters of Advertising Law Conference is among the highlights of the year in the world of advertising law. It is the rare legal conference that covers such a broad array of legal issues under one large “advertising law” umbrella, and it is overly stuffed with highly educational sessions. This year’s conference was no exception.
10 Key Takeaways | Reflections on the 2023 ANA Masters of Advertising Law Conference
The ANA Masters of Advertising Law Conference is among the highlights of the year in the world of advertising law. It is the rare legal conference that covers such a broad array of legal issues under one large “advertising law” umbrella, and it is overly stuffed with highly educational sessions. This year’s conference was no exception.
5 Key Takeaways - "Advertising Claim Substantiation: Challenging Competitor Claims and Substantiating your Own," from the 2023 ANA Masters of Advertising Law Conference | Kilpatrick - JDSupra
Barry M. Benjamin, managing partner of the New York office and chair of Kilpatrick’s Advertising and Marketing group, was honored to moderate a panel at the ANA’s 2023 Masters of Advertising Law Conference, titled Advertising Claim Substantiation: Challenging Competitor Claims and Substantiating Your Own. As the title indicates, the session provided an overview of the content, terminology, testing, and process required to substantiate advertising claims and challenge competitor claims.
Key Takeaways | "Advertising Claim Substantiation: Challenging Competitor Claims and Substantiating your Own," from the 2023 ANA Masters of Advertising Law Conference
Barry M. Benjamin, managing partner of the New York office and chair of Kilpatrick’s Advertising and Marketing group, was honored to moderate a panel at the ANA’s 2023 Masters of Advertising Law Conference, titled Advertising Claim Substantiation: Challenging Competitor Claims and Substantiating Your Own. As the title indicates, the session provided an overview of the content, terminology, testing, and process required to substantiate advertising claims and challenge competitor claims.
False Advertising Challenges
Litigation Corporate Counsel Consumer Protection Summary Companies should ensure their own advertising claims are in order before challenging competitor's false advertising claim Resolving false advertising dispute informally can save money and time NAD challenges provide cost-effective alternative to litigation Lanham Act suits offer possibility of receiving interim injunctive relief Many companies at some point face the challenge of dealing with a competitor’s false advertising.
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