Advertising Law Blog

New law takes effect just prior to the holidays

On December 10, 2023, a new law takes effect in New York that will mandate a grace period that will allow consumers three months to use up their credit card rewards points prior to a change in their loyalty program. New York General Business Law § 520-e was enacted in 2021 with a delayed effective date. The new law provides that before a credit card rewards program can be modified, cancelled or terminated, the consumer must be provided with at least 90 days’ notice of the forthcoming change and therefore an equally long window of opportunity to “redeem, exchange, or otherwise use” the previously accumulated points. The notice must go out no later than 45 days after the change has been decided upon by the credit card issuer.

It has been de rigueur to void Québec when offering a sweepstakes to Canadian residents due to its historically onerous registration requirements. While Québec still has strong language requirements, and Canada prohibits pure chance promotions, the Province of Québec will no longer require registration of publicity contests with the Régie des alcools, des courses et des jeux (the “Régie”).

McDonald’s and Wendy’s defeat lawsuit over burger depictions

Recently, we blogged about a lawsuit that accused Arby’s of false advertising by serving roast beef and brisket sandwiches that contained significantly less meat than what was depicted in advertisements. Arby’s may be breathing a sigh of relief right now because McDonald’s and Wendy’s have just prevailed in a similar lawsuit that targeted the depictions of their burgers.

Coffee seller’s motion to dismiss class action denied by court

In a recent legal battle, Starbucks became the center of a lawsuit filed by plaintiffs who are alleging deceptive advertising practices related to beverage and food items sold in their stores. The case, combined with the court’s recent ruling denying Starbuck’s motion to dismiss, raises questions about the transparency of product labeling and the expectations of consumers when it comes to the accuracy of product names.

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, was quoted in a Corporate Counsel article (subscription required) on the ruling by the U.S. Court of Appeals for the Fifth Circuit that the Biden administration had likely violated the First Amendment for “coercing” social media platforms to take down “disfavored” content from their sites that it deemed to be misinformation about topics such as COVID-19 or the 2020 elections.

Arby’s roast beef accused of being less plentiful, too well done compared to ads

For the past few years, Arby's Restaurant Group, Inc. touts its fast-food chain with the slogan, “We have the meats.” Now, a class-action lawsuit filed in the Eastern District of New York alleges otherwise. Plaintiff Joseph Alongis accuses Arby's of engaging in unfair and deceptive trade practices by using misleading photographs of sandwiches in its advertising. According to Alongis, Arby's customers receive roast beef and brisket sandwiches with significantly less meat than the amount depicted in advertisements.

Andrew Lustigman, Chair of Olshan’s Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and associate Morgan Spina will present a webinar on myLawCLE entitled “The Nuts and Bolts of Structuring and Promoting a Lawful Sweepstakes,” on September 27, 2023, from 3-4 p.m. (EST). In this CLE webinar, Andy and Morgan provide an introduction to sweepstakes law, covering the key legal areas of concern that arise in structuring a sweepstakes, including lottery law and gambling concerns and how to address them. Topics they will discuss include why bespoke rules are important and key provisions that should be incorporated when preparing a sweepstakes, as well as how to promote a sweepstakes on Instagram, Tik Tok and other social media platforms.

You can register for this CLE webinar here.

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, and Jeremy King, Chair of Olshan’s Insurance Coverage Practice, published an article in Bloomberg Law (subscription required) entitled “Social Media Influencers Must Weigh Liability Insurance Options.” In the article, the authors warn that certain promotional behaviors undertaken by social media influencers could potentially expose brands to legal liabilities. Accordingly, many brands require influencers to purchase ...

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, will serve as co-moderator on the panel “Distinct Politics –Politicians Using Music, Names, Signs and Logos” as part of the International Bar Association’s 2023 Annual Conference in Paris from October 29 – November 3, 2023, the leading conference for legal professionals worldwide to meet, share knowledge, build contacts and develop business. The panel will address how political parties and politicians distinguish ...

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in Bloomberg Law (subscription required) on how the launch of the new social media app Threads may feature some of the same pitfalls for brands, though it means to offer a “less toxic” alternative to Twitter. Accordingly, it is incumbent upon brands to remain hyper-cognizant of the spaces in which they advertise, including on this new platform from Facebook parent company Meta. “By combining the interactivity ...