On July 3rd a federal district court granted the FTC’s request to stop a group of San Diego-based Internet marketers, including Triangle Media Corporation, from deceptively advertising free trial offers and charging consumers for the trial product while also enrolling them in ongoing continuity plans without their knowledge or consent.
Lisa B. Dubrow, our Subscription Insider Guide to Subscription Regulation and Compliance, is a partner at Dubrow & Bhonslay (www.brandmarketinglaw.com). Ms Dubrow counsels clients on legal issues surrounding the advertising and marketing of goods and services, including consumer protection issues, the security and privacy of consumer databases, state and federal compliance with all methods of sales, including e-commerce, direct mail and telemarketing, negative option sales, “back end issues” related to consumer payment, privacy of consumer information, behavioral marketing and informational capture, licensing arrangements and affiliate sales arrangements, negotiations with vendors, agencies, telemarketers, fulfillment and talent, and any and all issues pertaining to bringing goods and services to market.
Ms. Dubrow has practiced in the advertising and marketing industries for over 20 years. She was a founding member of the advertising department of Loeb & Loeb and the New York City advertising practice of Winston and Strawn. She was also a founding member of the advertising practice of Kay, Collyer & Boose LLP, which after she left the firm, later became the advertising department of Davis Wright & Tremaine.
She has also served as Senior Vice President, General Counsel and Executive Director of Privacy to Synapse Group, Inc., a direct subsidiary of Time Warner, Inc., where Ms. Dubrow and the legal department she managed provided day-to-day counsel for several business divisions. In this position, she learned first-hand how to manage the competing needs of risk tolerance and moving a business forward.
Ms. Dubrow is a Phi Beta Kappa graduate from SUNY Binghamton. She received her law degree from New York University School of Law.
She has earned the Certified Information Privacy Professional/United States (CIPP/US) credential through the International Association of Privacy Professionals.
About Dubrow & Bhonslay
Lisa Dubrow opened her boutique law firm in 2003. She concentrates her practice in the areas of marketing, advertising and digital media. She previously was associated with such large law firms as Loeb & Loeb and Winston & Strawn, where she represented many global advertising agencies and advertisers. She was also Senior Vice President, General Counsel and Executive Director of Privacy at Synapse Group Inc., a division of Time Warner. She joined forces with Stephanie Bhonslay in 2016.
Stephanie Bhonslay has represented advertising and marketing clients for over 20 years. Prior to joining Dubrow & Bhonslay, she served as Assistant General Counsel for the worldwide ad agency, J. Walter Thompson U.S.A. She was previously associated with Hall Dickler Kent Friedman and Wood where she represented many large agencies and advertisers. She was also in-house counsel at GT Interactive Software, an interactive software and video game publisher and distributor.
Both Lisa Dubrow and Stephanie Bhonslay are certified privacy professionals (CIPP/US) having obtained their certification from the International Association of Privacy Professionals.
Our practice is concentrated in the following areas:
- Regulatory (state and federal): We review of advertising and marketing materials for compliance with state and federal laws, regulations, and industry guidelines pertaining to consumer protection and privacy. For example, we focus on compliance with CANSPAM, COPPA, TCPA, state consumer protection laws (such as under CalOPPA) and FTC Guidelines.
- Recurring Billing Models (state and federal): We focus on state and federal regulations and statutes pertaining to negative option sales, including the offer and disclosure copy to consumers which is regulated by ROSCA, Regulation E and state statutes as well as settlements with state attorneys general and the FTC as well as settlements. We also counsel on the back-end issues relating to payment mechanisms and the required timing of notices and payments.
- Advertising Review: We review advertising across all channels of marketing (direct mail, telemarketing, print, online and mobile) for legal and regulatory compliance. This is accomplished by reviewing copy, product claims and substantiation, pricing, disclosures and disclaimers.
- Content Acquisition and Licensing: We advise clients on the proper use of third party materials in marketing materials, including user generated content obtained by consumers and social media. This includes licensing and acquisition of third party content for inclusion in apps, advertising and entertainment properties.
- Digital Advertising and Technology: We negotiate and draft IAB/AAAA and bespoke digital media buying agreements across channels on behalf of publishers and advertisers. We also help our clients develop ecommerce, social media and buzz marketing strategies, native advertising and apps to help drive consumer traffic.
- Data Privacy/Data Licensing: We counsel clients on their data collection practices in light of legal, regulatory and self-regulatory guidelines, and draft and update privacy policies and terms of service, data licensing agreements, and associated vendor agreements. We also provide employee compliance training and advice on best practices.
- Sweepstakes and Promotions: We counsel on how to properly structure consumer promotions for compliance with federal and state law and social media platforms, and draft official rules for sweepstakes and contests, and advise on the implementation of associated administration requirements such as appropriate registrations and bonding in applicable states. We also assist with other types of promotions, including client loyalty programs, rebates, and coupon offers.
- Miscellaneous Contracts: We negotiate and draft a broad range of business arrangements such as sponsorships, production, talent, agency/client, co-marketing, affiliate marketing, public relations, and subcontracting services.
California just passed a new restrictive privacy law, the California Consumer Privacy Act of 2018.
Assuming the law is not amended before it comes into force on January 1, 2020. The new law protects any "consumer," defined as a "natural person who is a California resident."
A consumer protection bill was passed on May 28, 2018, in Vermont concerning contracts with automatic renewal provisions. The new law, which goes into effect on July 1, 2019, applies to “consumer” contracts with an initial term of at least one year and that automatically renew for a subsequent term longer than one month.
The Federal Trade Commission has settled a case in which the defendants allegedly sold tooth whitening products, via subscription using at least 87 websites promoted by affiliate marketers. Under the settlement, defendants are restricted from making future negative option sales and using consumer information obtained from their prior sales and were imposed a whopping judgment of $92,011,601.
Subscription marketing offers that include pricing claims such as “Yours for only $95. You save $50” and “Buy One Get One Free” are ubiquitous but unless those pricing claims are strictly true, they can violate Section 5 of the FTC Act. Lisa B. Dubrow, Esq. explains a recent case addressing deceptive pricing claims and provides some guidelines to keep you on the right side of offer compliance.
Companies that sell products or services through subscription models need to keep in mind that there are numerous federal and state laws could impact how these models are structured and advertised. With recent legal settlements by major subscription brands as a bell weather, it might be time to revisit your auto-renewal policies and advertising to ensure you are not in danger of being held to these new legal standards. Lisa B. Dubrow, Esq. explains.
Given the current scrutiny of subscription-based recurring billing programs, particularly in California, marketers should take the time to re-examine their auto-renewal programs. Lisa B. Dubrow, Esq, our Subscription Insider Guide to Subscription Regulation and Compliance and partner at Dubrow & Bhonslay, explains.
Lisa B. Dubrow, Esq, our Subscription Insider Guide to Subscription Regulation and Compliance and partner at Dubrow & Bhonslay, reminds members of the upcoming deadlines related to the Digital Millennium Copyright Act.
Using affiliate marketers will not give you a pass in creating offers that comply with the law in any negative option sales. Lisa B. Dubrow, Esq., Subscription Insider Guide to Subscription Regulation and Compliance and partner at Dubrow & Bhonslay, explains how and why the FTC is going after large settlements to ensure marketers and advertisers are compliant.
As marketers, you need to support all advertising claims. However, sometimes a claim might appear ambiguous and therefore you might conclude it is not necessary to support. Because food boxes are so popular now we thought we would report on a claim made by a food manufacturer where the definition of “local” was one focus of the case.