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Articles by Selz PC
Frankfurt Kurnit Adds Entertainment Pro In LA From Katten
Frankfurt Kurnit Klein & Selz PC is strengthening its entertainment group in Los Angeles with a former Katten Muchin Rosenman LLP attorney whose clients have been involved with series such as... Want to continue reading?
Legal Considerations when Advertising Psychedelic Products and Related Therapeutic Services
Microdosing. “Magic” mushroom dinners. Ayahuasca retreats. Today, psychedelic products and related therapeutic services are gaining in popularity and making their way into the “mainstream.” As they enter further into the public discourse, you may have seen advertisements for psychedelic products and related therapeutic services. Or perhaps you work for a company or advertising agency that is creating or placing ads to sell psychedelic products or related therapeutic services.
Are the New York Giants, the New York Jets, and MetLife Stadium Misleading Consumers About Their Connection to New York?
This time of year, I spend a lot of my time working on Super Bowl-related advertising. So, it seems like a perfect time to blog about football. Is it misleading for the New York Giants and the New York Jets to have "New York" in their team names when they actually play in MetLife Stadium, which is located in East Rutherford, New Jersey? And is it misleading for MetLife Stadium to use a New York City skyline image in its logo?
Top New California Employment Laws for 2023
Here is a snapshot of the new employment laws California employers and employees need to know as they start off 2023: Leaves of Absence AB 1041 expands who a California employee can care for under the California Family Rights Act (“CFRA”) and Healthy Workplaces, Healthy Families Act (“HWHFA”). The CFRA and HWHFA currently allow employees to take leave to care for a spouse, registered domestic partner, child, parent, parent-in-law, grandchild, or sibling.
Exercise Choreography and Alleged Betrayal: Tracy Anderson vs. Megan Roup
Tracy Anderson, the self-described “fitness pioneer,” developed the Tracy Anderson Method (“TA Method”), a series of exercise routines combining choreography, fitness, and cardiovascular movement.
NAD Ends 2022 With A Bang Not A Whimper
2023 is here, but a few NAD cases published towards the end of 2022 are worth noting. One case of interest is one initiated by NAD itself challenging express and implied claims made by Cash App, the financial services platform operated by Block, Inc., which allows users to, among other things, invest in stocks and Bitcoin.
What Advertising Law Issues Should You Keep an Eye on in 2023?
As we near the end of 2022, here are some thoughts from members of the Frankfurt Kurnit advertising group about a few key advertising law issues to keep an eye on in the coming year. Artificial intelligence -- Greg Boyd says, "AI art is the next generation of Photoshop. We should not allow a fear of new tools or potential liability to prevent us from using the magic wand.
If You Advertise That Your Product Has No Sugar, Does This Communicate That It's a Low Calorie Food?
Pepperidge Farm (owned by Campbell Soup) makes the well-known Goldfish snack crackers. On the front of the packaging, there's a statement that the product has "0g Sugars." Does this statement -- regardless of what other information may also appear on the front of the package -- communicate to consumers that Goldfish crackers are a low-calorie food? That was the issue in a recent case in federal court in California.
SAG-AFTRA and JPC Extend COVID-19 Safety Protocols
Last week, SAG-AFTRA and The Joint Policy Committee announced that they have agreed to extend the Commercial Production Safety and Testing Protocol Agreement. The Agreement (as it has been amended over the last two years) was scheduled to expire at the end of 2022, but it will now expire on March 31, 2023. In a statement, SAG-AFTRA and the JPC said, "Since the protocols were implemented, they have proven extremely effective in protecting cast and crew from undue COVID risk in the workplace."
Works Published in 1927 Enter the Public Domain in the U.S.
In 1927, Calvin Coolidge was president, the first commercial flight of Pan American Airways took off (leaving Key West bound for Havana), the Academy of Motion Picture Arts and Sciences was founded, singer Eartha Kitt was born, and artist Juan Gris died. And on January 1, 2023, all literary works, compositions, and films that were first published in that year will enter the public domain in the United States.
Product Review Site and The Impact of Affiliate Links Scrutinized by NAD Again
Like the FTC, NAD has long been interested in the product review ecosystem and, in particular, in review sites that purport to be impartial and independent.
DC Circuit Denies Injunction to Technologists Alleging DMCA Violates Their 1st Amendment Rights
This case is about a security researcher and an inventor who are concerned that the pursuit of their professional goals will subject them to civil liability and criminal prosecution under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 1201 et seq. That’s right: the potential of crippling civil judgments, and even jail time, just for doing their jobs.
Holiday Gifts from SAG-AFTRA and JPC: Low Budget Digital Waiver Extended and New National Cable Waiver Announced
As 2022 winds to a close, SAG-AFTRA and the Joint Policy Committee (JPC) have been busy little elves and have bestowed upon us two gifts for the holidays. First (see here), the bargaining parties have extended the Low Budget Digital Waiver - everyone's favorite waiver - through March 31, 2023 under its existing terms and conditions.
New York Postpones Effective Date of Automated Decision Tools Law
The New York City Department of Consumer and Worker Protection (“DCWP”) has announced a delay on the effective date of the Automated Employment Decision Tools Law (“AEDT Law”) from January 1, 2023 to April 15, 2023.
Better Late Than Never: New York Approves Remote Practice Rule
Earlier this month the New York Court of Appeals amended the rules governing temporary practice of law to allow for remote work in New York by lawyers licensed in other jurisdictions. The Court's order adds a new section, Part 523.5 to the existing rules on temporary practice of law in New York.
FTC Wants to Hear From You About Its Proposed Rule on "Junk Fees"
The Federal Trade Commission just announced that it is extending the public comment period for its proposed rule on "junk fees" until February 8, 2023.
FTC Seeks Public Comment on Potential Revisions to the Green Guides and on a Possible Rulemaking
Earlier today, the Federal Trade Commission announced that it is seeking public comment on proposed revisions to its Guides for the Use of Environmental Marketing Claims. The FTC is also asking for input on whether the Commission should initiate a rulemaking to codify (some or all of) the standards set forth in the Green Guides. The Green Guides were first issued in 1992 and were last revised in 2012.
RIP: The Traditional SAG-AFTRA Commercials Contract
The end of an era has come. The “traditional” SAG-AFTRA Commercials Contract will expire on December 31, 2022, and on January 1, 2023, the “new” SAG-AFTRA Commercials Contract, with updated compensation and editing structures, will be the only game in town. Fortunately, SAG-AFTRA and The Joint Policy Committee have issued a set of FAQs regarding the transition from the “traditional” to the “new” SAG-AFTRA Commercials Contract (the full set of FAQs may be found here).
Is it "Made in the USA"? It Depends on Which Law Applies . . .
Two recent closing letters from the Federal Trade Commission highlight the fact that marketers sometimes have to apply different legal standards when determining whether they can promote their product as having been made in the United States. "Made in USA" Standard vs. Textile Act Last week, the FTC closed an investigation into marketing by Smoke Guard, a company that makes fire and smoke protection products.
NY Law Now Requires Do-Not-Call Notice at Outset of Telemarketing Calls
To further crack down on unwanted telemarketing calls, New York Governor Kathy Hochul has signed legislation which requires telemarketers to offer customers the option to be added to the company’s do-not-call list at the outset of telemarketing calls, immediately after the telemarketer’s and solicitor’s names have been provided.
What Does it Mean to be a "Verified" Seller Online?
There's been a lot of talk lately about what it means to be "verified" online. A recent case decided by a federal court in Colorado just wrestled with this issue. Here's the story. A man placed an ad to sell a car through the online marketplace Letgo. He placed the ad using the fake name, "James Worthy." The fake Mr. Worthy was identified as a "Verified" seller on the site. The car he was selling was actually a stolen car.
Savage X Fenty to Pay $1.2M to Put California Consumer Protection Lawsuit to Bed
Rihanna’s Savage X Fenty has agreed to pay $1.2 million to settle a consumer protection lawsuit with California regulators which alleged that the lingerie company engaged in false and misleading advertising practices in connection with its VIP membership program, an automatically renewing online subscription service.
FTC Says It's Investigating Crypto Companies Over Digital Asset Advertising
According to a recent report by Bloomberg News, the Federal Trade Commission indicated that it is investigating various crypto companies for their digital asset advertising. The FTC has not said what the exact focus of the inquiry is -- and, as expected, the FTC has not revealed who the targets of the investigation are.
FTC Says It's Ready to Kick Off Its Review of the Green Guides
The Federal Trade Commission just announced that, at an open meeting of the FTC on December 14th, it plans to vote on whether to publish a Federal Register notice commencing a regulatory review of its Guides for the Use of Environmental Marketing Claims -- frequently referred to as the "Green Guides." Late last year, the FTC said that it planned to conduct a review of the Green Guides, which were last revised in 2012.
Privacy Considerations for 2023
2023 is around the corner. As a refresher, on January 1, 2023, two new comprehensive privacy laws – the California Privacy Rights Act (“CPRA”) and the Virginia Consumer Data Protection Act (“VCDPA”) – take effect. Although businesses should be well on their way to compliance, we have compiled some last minute tips in this alert for your consideration before the year’s end. Update Your Privacy Policy. Businesses should review and update their privacy policies to address new disclosure obligations.
Suit Proceeds Over “Big Bad Cough” Ad Campaign for Allegedly Faulty Vaccine
Last week, a New York district judge moved forward a class action lawsuit against pharmaceutical company GlaxoSmithKline (GSK) over an allegedly misleading advertising campaign for its whooping cough vaccine. Consumers claimed the vaccine, Boostrix, increased the risk of transmitting the disease to infants despite it being advertised as effective in preventing the spread.
Mozzarella Sticks Suit Proceeds Against Manufacturer, but not TGI Friday’s
Earlier this week, an Illinois federal judge allowed a class action lawsuit against the manufacturer of “TGI Friday’s Mozzarella Stick Snacks” to proceed – but restaurant chain TGI Friday’s was dismissed from the suit. The snacks, which allegedly do not contain actual mozzarella cheese, were marketed under the TGI Friday’s (TGIF) brand and manufactured by Inventure Foods, Inc.
Can NAD rule on a piece of collateral that the challenger had no business seeing?
Apparently so. In what may have been an issue of first impression in the self-regulatory forum, NAD examined the claims in a sales presentation brochure that the advertiser argued should not have been subject to NAD’s jurisdiction.
ICYDK: Music NFTs Also Generate Royalties
The newest case against American DJ 3LAU is very timely, with “music NFTs” becoming a growing trend in the music industry. “Music NFTs” and Copyright Law. As a refresher, an NFT is a unique cryptographic or blockchain-based asset linked to another asset or piece of content such as digital artwork, a ticket, or a musical album.
Copyright, Clearances and Concert Recordings: ABKCO Music, Inc. v. Sagan
Bill Graham was one of the great concert promoters of the twentieth century. During a career that spanned from the late 1960s until his death (in a helicopter crash) in 1991, Graham worked with The Grateful Dead, Jimi Hendrix, Janis Joplin, Neil Young, The Who, Jefferson Airplane, Santana, Bob Dylan ... and anyone else who mattered. Described (by actor Peter Coyote) as “a cross between Mother Teresa and Al Capone” and (by the artist Grace Slick) as "one of us and one of them ...
President Biden Says His Administration is Taking on "Junk Fees"
In a speech last week, President Joe Biden said that his Administration is taking on so-called "junk fees." Accompanied by CFPB Director Rohit Chopra and FTC Chair Lina Khan, the President said that he wants to eliminate "unfair hidden fees" that are taking "real money out of the pockets of American families." The Administration made clear that it's not suggesting that all additional fees are unfair; the President is just focused on the hidden ones.
PA Attorney General Sues Lead Gen Companies for Telemarketing and Consumer Protection Law Violations
Pennsylvania Attorney General Josh Shapiro announced that his office filed a lawsuit against New York-based Fluent, Inc. and its affiliates alleging that the group of companies used deceptive tactics to collect consumers’ contact information and sell it to telemarketers, resulting in hundreds of thousands of unwanted robocalls to state residents.
Jury Awards More Than $3M in Damages in Lawsuit Alleging False "Made in USA" Claims
BenShot and Lucky Shot USA both sell drinking glasses with bullets embedded in the side of the glass. BenShot sued Lucky Shot USA in federal court in Wisconsin, alleging that the defendant falsely promoted its products as having been made in the United States, in violation of the Lanham Act and Wisconsin unfair competition laws.
Retailer Settles With NYC Over Charges That it Violated the City's Cashless Ban Law
The New York City Department of Consumer and Worker Protection announced that it reached a settlement with Van Leeuwen Ice Cream, resolving allegations that the ice cream company's retail stores refused to accept cash for purchases in violation of NYC's Cashless Ban Law. As part of the settlement, Van Leeuwen agreed to comply with the law and to pay $33,000 in civil penalties.
Can Marketers Rely on Supplier Certifications When Making "Made in USA" Claims?
The Federal Trade Commission's Enforcement Policy Statement on U.S. Origin Claims says that, in order for an advertiser to make an unqualified "made in U.S.A." claim about a product, the advertiser must be able to substantiate that the product was "all or virtually all" made in the United States. (This standard was also recently codified in a new Made in USA Labeling Rule.) What does "all or virtually all" mean?
Is Farm-Raised Fish "Sustainably Sourced"?
The Federal Trade Commission's Green Guides provide guidance on how to make environmental marketing claims that are truthful and not misleading.
FTC Brings Enforcement Action Over "Made in USA" Claims
The Federal Trade Commission announced that it reached a settlement with Axis LED Group and ALG-Health, as well as their owner, resolving allegations that the companies made false U.S.-origin claims in connection with their marketing of personal protective equipment and other products. As part of the settlement, the defendants agreed to pay more than $157,000 in civil penalties, as well as $2.8 million in consumer redress (which was suspended due to their inability to pay).
Last month, the Federal Trade Commission announced that it reached a settlement with R360 and its owner, resolving allegations that they deceptively marketed their substance abuse treatment centers. The case is the first that the FTC has brought under the Opioid Addition Recovery Fraud Prevention Act of 2018.
Actress and TV Personality Mayim Bialik Sues Over False CBD Endorsements
Mayim Bialik, internationally recognized actress, author, and neuroscientist, filed suit in Florida federal court last week seeking damages against various websites and online marketers in connection with allegations that they misappropriated her name and likeness to promote their CBD products. Bialik claims that she has never endorsed cannabidiol products, is not currently doing so, and has no plans to do so in the future.
FTC Cautions Against Use of AI to Combat Online Harms
During its latest open meeting, the Federal Trade Commission introduced and voted 4-1 to publish a report to Congress warning about the use of artificial intelligence to combat various online harms and urging policymakers to “exercise great caution” in mandating or over-relying on these tools.
Meta to Provide Additional Information Regarding Political Ad Targeting
Meta has announced updates to its ad transparency tools that it says will provide more information to researchers about “advertiser targeting choices for social issue, electoral and political ads.” According to the announcement, detailed information about ad targeting for each relevant ad, including the interest categories chosen by advertisers, will be available to “vetted” academic researchers though the Facebook Open Research and Transparency environment.
Can You Make "Made in USA" Claims For Drinking Glasses That Are (Almost Entirely) Made in China?
BenShot and Lucky Shot USA both sell drinking glasses with bullets embedded in the side of the glass. BenShot sued Lucky Shot USA in federal court in Wisconsin, alleging that the defendant falsely promoted its products as having been made in the United States, in violation of the Lanham Act and Wisconsin unfair competition laws. Several years ago, Lucky Shot moved to dismiss, and the court, relying heavily on the FTC's Enforcement Policy Statement on U.S. Origin Claims, denied the motion.
Colorado Attorney General Seeks Public Comment on Colorado Privacy Act Rulemaking
In his prepared remarks given at the International Association of Privacy Professionals Global Privacy Summit in Washington D.C., Colorado Attorney General Phil Weiser announced on April 12, 2022 that his office is seeking informal public comments on the Colorado Privacy Act (“CPA”) rulemaking. The CPA was signed into law in July 2021, making Colorado the third US state to adopt a comprehensive privacy law.
FTC Says It's Reviving Old Notices of Penalty Offenses On Cars, Bait & Switch, Energy Savings, Fur, Home Improvement, Textiles, Toys, and Weight Loss
After last year's U.S. Supreme Court decision limiting the Federal Trade Commission's ability to obtain financial relief, the FTC has been forced to look for new ways to give teeth to its enforcement actions.
Does VARA Prevent an Institution From Obscuring a Visual Work That Some People Find Offensive?
What happens if an institution decides to obscure a work of art on the ground that that it is offensive and unworthy of continued display? This question currently is being briefed in the United States Court of Appeals in a case involving murals at Vermont Law School. And the decision could have broad implications for future efforts to destroy or remove works of art. In a nutshell, in 1993 an artist named Samuel Kerson painted two large murals on the walls of a Vermont Law School building.
Is "Lightly Sweetened" a Claim Requiring Substantiation or Puffery?
If you're advertising your iced tea as "lightly sweetened," do you need substantiation for that statement? Or is it simply non-actionable puffery? That was the issue in a recent lawsuit in the Eastern District of Pennsylvania.
Last week, New York Attorney General Letitia James ordered baby food company HolleUSA to stop making false claims in its advertising that its products are "lead free" and have no detectable traces of heavy metals. In announcing the action, James said, "New York parents should never have to second guess the safety of the products meant for their children.
The FTC Issues Latest Report on Romance Scams Just in Time for Valentine’s Day
In the lead up to this Valentine’s Day, it seems like everyone is determined to kill any semblance of romance in the air. The Tinder Swindler, a documentary about a con man who used the dating app Tinder to defraud multiple women, is one of the most popular shows on Netflix right now. (I highly recommend it). Valentine’s Day flower prices are at an all-time high.
Rapper Fat Joe Lost the Signed Contract ... But Still Wins Case Over Ownership of "All the Way Up"
Lawyers often tell clients: put it in writing. A corollary, which often goes unsaid (but perhaps shouldn't), is: save a copy. This case is about what happens when an important agreement governing ownership of a valuable copyright is lost forever. (The fact that the agreement in question was signed during a high-stakes meeting that took place at an IHOP - possibly while tucking into the chain's world-famous buttermilk pancakes? - makes this case only more delish.
Hungry Hungry HIPAAs
For anyone who has taken even a cursory glance through social media, it seems that suddenly everything just might be a HIPAA violation. The satirical Twitter account “BadHippa” collects the internet’s opinions on what constitutes a HIPAA violation – everything from family members asking you about your vaccine status to hospitals sending bills to collection agencies.
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