As the year comes to a close, we wanted to share with you our thoughts about some of the key issues to keep in mind for 2020. So, here are some tips from many of the members of the Frankfurt Kurnit Advertising Group.
- Mma Afoaku — If 2019 is a clue about things to come, you should expect to see many more claims in 2020 arising out of the unauthorized use of intellectual property in social media posts. Don't assume that, just because it's social media, that rights holders won't care. If you're planning to incorporate music, photos, artwork, celebrities, or other third party materials in your social media advertising, 2020 will be a good year to make sure that you get the rights you need.
- Chris Chase — 2020 will be a big year for events –- from sporting (such as the Tokyo Olympics and the UEFA Euro soccer tournament) to the political (such as the Democratic and Republication National Conventions and the Presidential Election) –- and advertisers will likely want to be involved, whether officially or unofficially. If the latter, be careful that the “ambush” marketing does not cross the line and use caution when considering the use of official intellectual property of the targeted organization.
- Jordyn Eisenpress — "Green" claims (i.e., claims about the environmental benefits of a product) have been all the rage for the past few years, and 2020 will be no exception! When touting these types of attributes, advertisers should steer clear of broad, unqualified "environmentally friendly" type claims and focus on the specific benefits of the product that can be substantiated. When doing so, advertisers should make sure their substantiation is line with both the FTC's Green Guides as well as state laws regulating this area!
- Daniel Goldberg — If you haven’t already made privacy a priority, now is the time. California’s new privacy law takes effect on January 1, 2020. Businesses that process information about California residents will need to update their privacy policies, provide California residents with certain rights around their information, and review internal measures for securing information, among other things. Expect to see California AG enforcement actions starting in July 2020 (although the AG can bring actions for retroactive violations) and class action lawsuits relating to data breaches starting in January 2020.
- Jeff Greenbaum — In 2019, the FTC's commissioners debated whether the FTC was being aggressive enough when prosecuting egregious false advertising cases, with some pushing for tougher penalties and consent orders. The FTC even held a workshop about the effectiveness of its "Made in USA" enforcement program, which asked important questions about whether no fault, no damages settlements were effective in deterring others from making unsubstantiated claims. In 2020, we should expect to get further guidance from the FTC on these issues — as well as some big cases, with tough penalties, that show that the FTC enforcement does have teeth.
- Rayna Lopyan — Many of the best ads are the ones that lead consumers to actually make a purchase –- and now social media platforms are making that easier than ever. Perhaps the best example is Instagram, which launched new shopping functionality features in-platform this past year. Users can now click links to purchase items directly from Instagram stories and in a dedicated shopping section accessible from the explore tab, making it easier for users to purchase items featured by brand influencers. Given the more streamlined in-app check-out experience, though, brands should take care to think through any disclosure issues –- both material connection disclosures and disclosure of any purchase information that would otherwise appear in a more traditional mobile website purchase flow. With that in mind, shop away!
- James Mariani — To no one’s surprise, 2019 marked more data breaches than ever, and legislatures are attempting to tackle the problem. New York updated its data breach notification statute with the SHIELD Act, now requiring that companies implement a reasonable data security program with specific measures. The CCPA, going into effect January 1, 2020, includes a private right of action with sizable statutory damages that are available to consumers who are victims of a data breach due to a business’s lack of reasonable information security procedures and practices. If you haven’t measured your information security program against a standard considered commercially reasonable and industry standard, ‘tis the season.
- Brian Murphy — Earlier this year, SAG-AFTRA reached an agreement with third party signatories that imposed (in the union’s words) “rigorous new requirements” on the manner in which they could continue to work with non-signatory brands and agencies to produce union commercials. Just before these new rules (described in my prior post) were supposed to go into effect, SAG-AFTRA agreed to defer enforcement for an additional 60 days, to March 1, 2020. Everyone in the industry –- and non-signatories in particular — should pay close attention to what comes next.
- Wendy Schechter — Think twice before asking a music house to create music in the style of a particular song, since even seemingly innocuous similarities could result in a claim. This year, in a decision similar to the one in the “Blurred Lines” case, a California jury found that the Katy Perry song “Dark Horse” infringed on a Christian gospel song, even though Katy Perry’s legal team argued that the only similarities between the songs were basic musical patterns that should not be afforded copyright protection. And several other music copyright lawsuits are pending, including one claiming that Drake committed copyright infringement for sampling a beat. Many in the music industry are hoping that in 2020 the United States Court of Appeals for the Ninth Circuit, which is rehearing a copyright case regarding “Stairway to Heaven”, will put the brakes on what they believe is a mistaken expansion by juries of the copyright laws. But for now, proceed with caution.
- Terri Seligman — 2019 was another year of legislative developments and enforcement actions involving marketers’ auto-renew programs. If you offer any type of subscription program, whether it’s for a monthly box of cat treats or access to digital content, make sure your program is compliant with federal and state laws. That means (at a minimum) clear and conspicuous up front disclosures, an opt-in from consumers, and easy cancellation functionality. Some states require more so be sure to be aware of the requirements of any state whose consumers you are enrolling in your program.
From all of us in the Frankfurt Kurnit Advertising Group, best wishes for the holidays and happy new year!
Jeffrey A. Greenbaum, Managing Partner of Frankfurt Kurnit since 2010, is one of the country’s leading advertising lawyers. He is a partner in the Frankfurt Kurnit Klein + Selz's Advertising, Marketing & Public Relations Group and has extensive experience representing advertisers, advertising agencies, and media companies on advertising, branded entertainment, and intellectual property matters. He is also the Chairman of the Global Advertising Lawyers Alliance.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney. To contact Jeffrey A. Greenbaum ESQ click here.
