Ashley R. Dobbs, Bean, Kinney & Korman, focused on the common advertising mistakes that can get you in trouble with the law. She gave insight on how to effectively advertise without sacrificing legality. The presentation addressed five common advertising mistakes: • Not telling the truth: Inadvertently creating deceptive or misleading messages, or omitting necessary material • Not carefully comparing amongst competitors: Being liable for trademark infringement if done incorrectly • Misusing contests and sweepstakes: Laws in all 50 states regulate these practices • Misusing children's data or medical data: Collecting and targeting the proper data when advertising to kids • Spamming: Statutory damages await those who improperly conduct email advertising campaigns

1. Advertising Laws:
5 Common Mistakes
Ashley R. Dobbs
(703) 526-4701
adobbs@beankinney.com
2300 Wilson Boulevard, 7th Floor
Arlington, VA 22201
www.beankinney.com

2. Ashley R. Dobbs
Shareholder at Bean, Kinney, and Korman P.C.
 8 years in legal practice
 Lead BKK’s Intellectual Property practice group:
advertising, marketing, brand protection, trademark,
copyright, licensing (data, software, trademark,
content), sponsorship & merchandising contracts,
internet
 Clients include businesses and ad and PR agencies
 15 years as business and brand marketing
consultant, working with advertising and promotion
agencies (among others)

3. Overview
 What is “Advertising”?
 Five Mistakes that can get you into trouble:
1. Not telling the truth
2. Not carefully comparing amongst competitors
3. Misusing contests and sweepstakes
4. Misusing children’s data
5. Spamming
 Conclusion

4. What is Advertising?
 Traditional media
 Online or Digital
 Social Media
 Out-of-Home
 Guerilla
 Closed Circuit
 In-theater
 Point-of-Sale

5. What’s at Risk?
 Marketing and advertising expenditure
 Corrective advertising
 PR issues and corrections
 Cost of defending claims
 Reputation

6. 5 Common Mistakes:
1. Not telling the truth
2. Not carefully comparing amongst
competitors
3. Misusing contests and sweepstakes
4. Misusing children’s data
5. Spamming

7. The Truth Will Set You Free
 Federal Laws:
 Lanham Act – false advertising
 Federal Trade Commission Act – false
advertising and misleading ads
 State Laws:
 Criminal false advertising
 Trademark laws
 Consumer Protection Laws

8. False Advertising Elements
 Generally speaking:
 False or misleading statement;
 Actual deception or a tendency to deceive;
 Likely to influence purchasing decisions;
 Interstate commerce; and
 Likelihood of injury to the plaintiff (not
actual injury).

9. False Advertising - FTC
 FTC also requires evidence to back up
any claims made in advertisements
 Particular attention to health and safety
claims
 “Magic Words”

10. Examples
 Kellogg’s Mini-Wheats makes your kids
smarter? – FTC complaint
 Taco Bell – where’s the beef?

11. Compare and Contrast
 Federal Laws:
 Lanham Act – false advertising
 Federal Trade Commission Act – false
advertising and misleading ads
 Standard:
 Identify comparison
 Be truthful and non-deceptive
 Don’t be ambiguous

12. Claims the FTC Rejected
 “Domino’s oven baked sandwiches beat
Subway’s in a national taste test 2 to 1.”
 “Unlike Progresso soups, new
Campbell’s Select Harvest soups never
contain artificial flavors or MSG.”
 “Glad Fabric and Air Odor Eliminator
penetrates deeper than Febreeze on
carpet.”
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13. You May Already Have Won!
 Federal Trade Commission Act – false
advertising
 State Laws
 Every state has different laws
 Online promotions implicate every state
 Violation of Virginia law is a misdemeanor
(Class 3)
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14. Virginia State Law
 Va. Code § 18.2-242: “no retail establishment…shall
use any game, contest, lottery, or other scheme or
device, whereby a person…may receive gifts, prizes
or gratuities as determined by chance for the purpose
of promoting, furthering or advertising the sale of any
product or products having both a federal and state
excise tax placed upon it, and the fact that no
purchase is required in order to participate…shall not
exclude such game, contest, lottery or scheme from
the provisions of this section.”
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15. Other issues
 Coupons
 Lotteries
 Sweepstakes
 Rebates
 “Daily Deal” Sites
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16. Misusing Children’s Data
 Children’s Online Privacy Protection Act
(COPPA): regulates commercial
websites and online services that are
directed to or that knowingly collect
information from children under 13
years old.
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17. Compliance?
 Even if you don’t target children under
13, you may need to comply with
COPPA
 Requires notice, verifiable parental
consent, procedures for removal and
correction, and means for specific
collection identification
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18. Examples
 Mrs. Fields Cookies ($100,000 fine)
 Hershey Foods ($85,000 fine)
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19. Spamming
 Federal “CAN-SPAM” Act prohibits
certain unsolicited e-mail mesages
 Applies to:
 any person, including business entities and
nonprofit associations, who initiates a
commercial e-mail message- either
originates the e-mail or procures the
transmission of it
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20. Requirements:
 Clear notice of the recipient’s right to opt out
of future messages
 Mechanism for opting out. The opt-out must
become effective within 10 business days.
 Clear identification that the message is an
advertisement or solicitation
 The sender’s postal address
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21. Best Practices
 Be accurate.
 Get permission.
 Treat competitors fairly.
 Check your facts.
 Watch your privacy policies.
 Check your e-mail marketing policies.

22. Ashley R. Dobbs, Esquire
Bean, Kinney & Korman, P.C.
2300 Wilson Boulevard, 7th Floor
Arlington, Virginia 22201
703-526-4701
adobbs@beankinney.com
www.beankinney.com