USA Law and Practice Contributed by: Katelyn Patton, Frankfurt Kurnit Klein & Selz
1.8 Private Right of Action for Consumers Under state law, consumers have a private right of action (either individually or on behalf of a class of consumers) to challenge advertising practices – although the specific standards vary by state. One of the key aspects of a false advertising claim is typically whether the advertising is likely to mislead a reason - able consumer acting reasonably under the circum - stances. Consumers can seek monetary damages, Advertising is heavily regulated in the USA and there is a great deal of regulatory enforcement, self-regu - latory activity, and other advertising-related litigation. Advertisers should ensure that they have proper sub - stantiation for both their express and implied advertis - ing claims or they are at risk of being challenged by regulators, competitors, consumers and others. Some areas of particular focus right now include: • advertising claims that impact consumers’ health and safety; • advertising that could lead consumers to suffer significant financial harm; • environmental claims; injunctive relief, and other remedies. 1.9 Regulatory and Legal Trends The USA is a large and diverse country where there are widely differing, strongly held views about issues involving taste, politics and other cultural concerns. When advertising in the USA, advertisers should ensure that they work with local experts who are sen - sitive to these issues. There is increased attention on avoiding harmful stere - otypes in advertising and on making advertising itself more inclusive. Nonetheless, some advertisers have experienced significant backlash from some groups in connection with diversity-related advertising efforts. Recently, the National Advertising Division and the Children’s Advertising Review Unit have amended their procedures relating to issues of stereotyping. • junk fees and deceptive pricing; • emerging technology (such as AI); • automatic renewal practices; and • the use of endorsers and influencers. 1.10 Taste and Cultural Concerns
some regulated industries (such as in connection with the labelling of alcoholic beverages), certain govern - ment pre-approvals are required. Many television networks, outdoor and transit adver - tising companies, social media platforms and other media platforms have advertising standards and require advertising to be approved before they will allow the advertising to run. 1.6 Intellectual Property and Publicity Rights The right of publicity – in other words, the right of a person to control the use of that person’s name, pic - ture, voice or likeness for purposes of advertising or trade – is governed by state law and the rules vary by state. As a general matter, however, advertisers may not use the name, picture, likeness, voice or identity of an individual for any advertising or other commercial purpose without first obtaining the person’s written consent (subject to some limited exceptions). In many states, consent is also required (from the person’s The primary advertising self-regulatory authority in the USA is the National Advertising Division, which is administered by BBB National Programs. BBB Nation - al Programs administers a number of other advertis - ing self-regulatory programmes as well, including the Children’s Advertising Review Unit. The procedures of each of these programmes are different; however, as a general matter, advertisers can challenge advertis - ing that they believe violates the programme’s stand - ards and then the self-regulatory body will review the matter and issue a decision. If the self-regulatory body finds that the advertising has violated the pro - gramme’s standards, it will issue a decision recom - mending that the advertiser modify or discontinue the advertising (subject to certain rights of appeal). Although compliance with these standards is volun - tary, if an advertiser fails to comply, the self-regulatory body may refer the matter to a regulatory authority (eg, the FTC) for review. estate) for a period after death as well. 1.7 Self-Regulatory Authorities Various trade associations – for example, the Distilled Spirits Council of the United States, the Beer Institute, and the Wine Institute – have their own advertising standards and dispute resolution programmes as well.
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