- Posts by Andrew B. Lustigman
PartnerMarketers, advertisers, agencies and suppliers, among others, regularly seek Andy’s counsel regarding legal aspects of their advertising and promotional marketing businesses. He’s pragmatic and always looks for ...
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, will chair the session “Artificial Intelligence and the Public Domain: Global IP Frontiers in AI-Generated Advertising” on October 8 from 9:30 A.M. – 10:45 A.M. at the International Bar Association’s Annual Conference 2026, which will be held at the Bella Center in Copenhagen, Denmark, from October 4 – 9.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, will serve on a panel for an International Bar Association (IBA) webinar entitled “Sale of Goods Agreements: Relationships, Trade Wars and Their Influence on the Global Legal Practice” on September 9 at 7:00 A.M. EST.
Andrew Lustigman, Co-Managing Partner; Chair, Advertising, Marketing & Promotions Practice; Co-Chair, Brand Management & Protection Practice, was quoted in Bloomberg Law’s “Hochul’s Tech Safety Rules Pose Legal Questions: New York Brief.” In the article, Andrew discusses why New York’s SAFE for Kids Act and the regulations recently promulgated thereunder focus on the allegedly addictive features of social media, including algorithmically personalized feeds and nighttime notifications for minors.
There has been an increasing number of lawsuits threatened and filed in the last year against ecommerce marketers and other online companies based on their use of analytical and other “non essential” marketing-related cookies. These actions typically allege violations of various federal and state privacy statutes—most notably the California Invasion of Privacy Act (“CIPA”), including California Penal Code §§ 631(a), 632, 632.7, and 638.51—and challenge widely used online advertising and tracking practices such as the usage of cookies, pixels or the alleged interceptions of communications. It is important to note that there have been no definitive legal rulings on these claims, and this is an ever-changing area of the law, which is being increasingly exploited by plaintiff’s attorneys.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Intellectual Property and Brand Management & Protection partner Barry Greenbaum will deliver a presentation for a myLawCLE webinar entitled “Who’s Liable When AI Agents Misbehave? A 2026 Guide to Deployer Responsibility and Compliance-by-Design” on June 30 from 1:00 P.M. – 3:10 P.M. EST.
Olshan Frome Wolosky LLP has been recognized in the 2026 edition of The Legal 500 US as a Leading Law Firm in Advertising and Marketing: Transactional and Regulatory, with three attorneys individually ranked, including Andrew Lustigman being recognized as a Leading Partner. The firm’s recognition in this highly competitive category reflects its steady focus on advising clients in advertising law and regulatory compliance.
On June 4, 2026, the New York legislature passed the One Fair Price Act. If signed into law by Governor Kathy Hochul, the One Fair Price Act would ban surveillance pricing in New York and prohibit the use of consumers’ personal data to set individualized, algorithmically determined prices. This would ensure all individuals are charged the same price for the same product. It would also require disclosure of any use of automated pricing systems. The One Fair Price Act does not affect discounts and loyalty programs and explicitly allows discounts, including loyalty programs, coupons, subscription pricing, and standard promotions, including for veterans and seniors. The One Fair Price Act also authorizes the Office of the Attorney General to bring civil cases for penalties and restitution against companies or retailers that use surveillance pricing.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, authored an article for Chambers and Partners entitled “USA - Nationwide: An Advertising: Transactional & Regulatory Overview.” In the article, Andy discusses how advertising regulation and enforcement in the United States are evolving under the current federal administration and why advertisers still face significant compliance risks despite changes at the federal level.
Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman has been named a Leading Lawyer in the Chambers USA 2026 Guide for Advertising: Transactional & Regulatory for the nineteenth consecutive year. Chambers has consistently recognized Andy since 2008 for providing clients with legal advice on a wide range of advertising concerns.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Advertising, Marketing & Promotions Group partner Scott Shaffer will participate in panel discussions as part of Practising Law Institute’s (PLI) Hot Topics in Advertising Law 2026 on June 10 in New York.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Intellectual Property and Brand Management & Protection partner Barry Greenbaum delivered a presentation for an International Intellectual Property Society (IIPS) CLE webinar entitled “Your AI Made a Great Ad. Your Lawyer has Questions!” on May 20 from 10:00 A.M. - 11:00 A.M. EST.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, served on a panel for an International Bar Association (IBA) webinar entitled “A Jurisdictional Analysis of Acquiring and Managing Global Client Intellectual Property Portfolios” today at 9:00 A.M. EST.
Compliance with complex and sometimes inconsistent federal and state legal requirements for automatic renewal/continuity programs continues to present challenges to marketers. On the federal side, the applicable legal standards continue to whipsaw.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Branding Department associate Morgan Spina will deliver a presentation for a myLawCLE webinar entitled “Sweepstakes, Contests, and Giveaways: Mastering the Legal and Regulatory Landscape 2026” on March 19 at 1:00 P.M. EST.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Branding Department associate Morgan Spina published an article in New York Law Journal entitled “Your AI Made a Great Ad. Your Lawyer Has Questions.” In the article, Andy and Morgan discuss how advertisers can leverage AI-generated marketing content responsibly while navigating evolving state and federal regulations.
Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman has been named to the 2026 Lawdragon 500 Leading Global Entertainment, Sports & Media Lawyers list.
Chair of the firm's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will participate in a panel entitled “Making Health Claims: Navigating Scrutiny, Science, and Strategy” as part of ACI’s 9th Annual Legal, Regulatory, and Compliance Forum on Advertising Claims Substantiation on February 5, 2026, at 2:45 P.M. at the New York City Bar Association in NYC. Andy’s fellow panelists include Penelope Barnett, Vice President, Chief Marketing Counsel NA at Colgate-Palmolive; Megan Olsen, Senior Vice ...
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, will deliver a presentation for a myLawCLE webinar entitled “False Advertising Litigation: Affirmative Challenges, Defense Strategies, and Risk Mitigation” on January 14 from 1:00 P.M. - 3:10 P.M. EST.
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 New York Law Journal article (subscription required) on how, in this new era of AI-driven “content churn,” the law firms that stand out and maintain client trust are those that prioritize authenticity, depth and specialized insight over speed and volume.
Following significant enforcement of automatic renewal laws in 2025, enrollment and cancellation of continuity programs are expected to remain a top priority for regulators and legislators in 2026. While the Eighth Circuit’s vacating of the FTC’s recent Negative Option Rule brought great headlines, its impact was minimal given the continued legislative actions creating their own laws. For example, California, New York, Massachusetts and Connecticut all passed laws enhancing their existing automatic renewal requirements, fostering a hodge podge of compliance ...
As AI increasingly becomes the “plastics” (the famous line in The Graduate) of this era, politicians and regulators are increasingly focused on enforcement of applicable standards while at the same time balancing the advancement of the technology.
On the federal side, on December 11, 2025, President Trump issued the Executive Order “Ensuring a National Policy Framework for Artificial Intelligence,” that grants the United States Attorney General to sue states of AI regulations that are inconsistent with the Order’s policy goals, including laws that can regulate ...
Despite predictions to the contrary, the first year of the Trump led FTC has been surprising to many observers on its lack of consumer protection enforcement actions. To that end, the state attorneys general have been increasingly active in terms of enforcing their own consumer protection laws, including focusing on the social media channels. In December, a bipartisan coalition of three dozen state attorneys general urged the social media platform operator Meta to enforce its own policies about pharmaceutical and wellness ads on Instagram and Facebook and take additional ...
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Mary Grieco, Chair of the Intellectual Property Law Group and Co-Chair of the Brand Management & Protection Group, will speak on the panel “AI and Legal Liability” at Luxury Roundtable's AI in Luxury Summit on January 15, 2026, at 3:15 P.M. in New York.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, was featured in the Financier Worldwide POWER PLAYERS: Advertising & Marketing 2025 - Distinguished Advisers report. The report includes a Q&A with Andy wherein he discusses some of the standout moments in his career, the importance of mentoring younger colleagues and the values that he believes are essential for building strong and trusting relationships with clients.
Olshan’s Advertising, Marketing & Promotions Group has won the 2025 Media Law International Award for Law Firm of the Year. Honoring excellence across the legal practice, this award celebrates firms that demonstrate outstanding expertise and leadership and continue to elevate standards across the profession. The MLI Law Firm of the Year Award is based on the rigorous research of a leading independent publisher with a singular focus on media law, covering 60 jurisdictions worldwide. MLI’s qualitative approach involves extensive evaluation of law-firm capabilities, including market presence and sector specialization.
New York’s Algorithmic Pricing Disclosure Act is now in effect (as of November 10, 2025). (Read our coverage of the law in our June 25, 2025 Advertising Law Blog post.) Originally enacted in May as part of the state’s 2025-2026 omnibus budget bill, the law's effective date was delayed due to a failed legal challenge in the United States District Court for the Southern District of New York by the National Retail Federation, who alleged that the Act’s mandatory disclosure requirement violated the First Amendment and sought a preliminary injunction.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Branding Department associate Morgan Spina published an article in New York Law Journal entitled “Continued Focus on Subscription-Based Practices Leads to $2.5 Billion Amazon Settlement With FTC.”
Amazon’s recent massive $2.5 billion settlement with the Federal Trade Commission (“FTC”) regarding its Prime subscription model is a game-changer with respect to the exposure for difficult cancellation paths. It is also a strong reminder that the FTC, under Commissioner Ferguson and the Trump/Vance administration, intends to enforce the consumer protection laws in effect.
Olshan announced that nine of the firm’s lawyers have been recognized for inclusion in the 2026 edition of The Best Lawyers in America, including Andrew Lustigman and Mary Grieco, and four lawyers have been recognized to the “Ones to Watch” list.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Branding Department associate Morgan Spina published an article in Bloomberg Law entitled “Marketers Must Remain Vigilant Following ‘Click to Cancel’ Death.” In the article, Andy and Morgan analyze the Federal Trade Commision’s (FTC) “Negative Option Rule” known as the “Click to Cancel” Rule, a regulation requiring companies with subscriptions services to make cancellation as accessible and easy as signing ...
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, will speak on the panel “Look-Alike Products: Are Brand Owners Making a Comeback?” as part of the session “Hot Topics in Intellectual Property, Communications and Technology” at the International Bar Association’s Annual Conference 2025, which will be held in Toronto, Canada, on November 3 from 2:30 P.M. - 5:30 P.M.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Branding Department associate Morgan Spina published an article in Law360 entitled “Influencer Marketing Partnerships Face Rising Litigation Risk.” In the article, Andy and Morgan discuss how social media marketing has matured and how brands and influencers are dealing with an increase of lawsuits due to their failure to meet legal disclosure requirements.
Last month, New York passed its 2025-2026 omnibus budget bill. Contained within the Transportation, Economic Development and Environmental Conservation bill are unique consumer protection provisions, including those related to automatic renewals, online return policies, and algorithmic pricing disclosures, as well as AI companions. Given the method in which they were enacted, many of these provisions threaten to take online marketers by surprise.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Mary Grieco, Chair of the Intellectual Property Law Group and Co-Chair of the Brand Management & Protection Group, will speak on the panel “Legally Speaking: Social Media Influencer and Brand Protection Issues" at Luxury Roundtable's Luxury PR & Brand Communications Summit in New York on July 23, 2025.
Olshan Frome Wolosky LLP has been recognized in the 2025 edition of The Legal 500 US as a Leading Law Firm in Advertising and Marketing: Transactional and Regulatory, with three attorneys individually ranked, including Andrew Lustigman being recognized as a Leading Partner. The firm’s recognition in this highly competitive category reflects its steady focus on advising clients in advertising law and regulatory compliance.
Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman has been named a Leading Lawyer in the Chambers USA 2025 Guide for Advertising: Transactional & Regulatory for the eighteenth consecutive year. Chambers has consistently recognized Andy since 2008 for providing clients with legal advice on a wide range of advertising concerns. He joins three practice areas and nine other Olshan attorneys in this recognition.
With the rise of the use of generative AI training comes the risk of potential lawsuits from copyright owners whose works have been used without their authorization. The US Copyright Office is stepping up to provide guidance to keep up with this evolving technology and help define what constitutes fair use.
Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman has been appointed the International Bar Association’s Treasurer of the Intellectual Property and Entertainment Law Committee, to serve from January 2025 to December 2026. The IBA’s Legal Practice Division Committees provide invaluable services to members through conferences, webinars, projects and publications, including the IBA Annual Conference in Toronto, November 2-7, 2025.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, will speak on the panel “Food Marketing, Advertising, and Promotion Essentials: Ensuring Claims Compliancy and Meeting Substantiation Standards Relative to Health, Nutrition, Structure, and Function” as part of ACI’s Food Law and Regulation Boot Camp which will be held virtually on July 22, 2025, at 4:00 P.M. The panel will examine the relationship between the food product label and advertising and promotion, how to differentiate between “claims made” and “claims substantiated,” understanding what you can and cannot say in food advertising and promotion, how to distinguish FDA and FTC jurisdiction and authority relative to claims substantiation in food advertising and promotion, and much more.
The FTC’s long-awaited Final Rule on Unfair or Deceptive Fees went into effect on May 12, 2025. The Final Rule seeks to eliminate “bait and switch” or “drip” pricing and instill transparency in connection with the offering of live ticketing events and short-term lodging. The Final Rule builds on certain state pricing transparency laws, such as those in effect in California and Minnesota, whose requirements apply to transactions beyond those identified by the FTC.
Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will participate in a panel discussion at ACI’s Legal and Regulatory Think Tank for Working with Influencers, which will be held virtually on July 16, 2025, at 2:00 P.M.
Chair of the firm's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will participate in a telephonic CLE seminar entitled “Removing and Litigating Negative, Online Reviews & Social Media Law” hosted by Rossdale CLE today from 12:00 P.M. - 1:30 P.M. (EST).
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Branding Department associate Morgan Spina published an article in New York Law Journal entitled “The FTC's Evolution During Trump’s Second Term.”
Olshan’s Advertising, Marketing & Promotions Group was named a leading Tier 1 law firm by Media Law International. MLI’s 2025 ranking guide, covering firms and practitioners with media law experience across 60 jurisdictions globally, recognized Olshan for its excellence. Employing a multidisciplinary approach, Olshan integrates Brand Management & Protection and Advertising lawyers to offer knowledgeable, solutions-focused advice. View the rankings and editorial in MLI’s 2025 guide.
In Attorney at Law Magazine’s Legal Legacy Special Issue 2025, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman discussed the example set by his father, Sheldon S. Lustigman, who had his own advertising law boutique firm and eventually retired from Olshan.
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 LawPracticeCLE webinar entitled “Sweepstakes, Contests, and Giveaways: Mastering the Legal and Regulatory Landscape” on March 27 from 2:00 – 3:30 P.M. (EST).
Chair of the firm's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will participate in a panel entitled “A New Era of Endorsements, Testimonials, and Consumer Reviews: Navigating the FTC’s Final Rule and Emerging Areas of Risk for Enforcement and Penalties” as part of ACI’s 8th Annual Legal, Regulatory, and Compliance Forum on Advertising Claims Substantiation today at 1:00 P.M. at the New York City Bar Association in NYC.
Chair of the firm's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will participate in a panel discussion at Saint Louis University’s Gateway to Innovation: SLU Law IP, Entertainment, and Sports Law Conference on March 1, 2025, at 2:00 P.M.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and associate Morgan Spina published an article in Bloomberg Law entitled “New FTC Chair Likely to Keep Up Enforcement on Auto-Renewals”
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in New York Law Journal entitled “What Businesses Need to Know About Anticipated FTC Leadership Changes”
Given consumers' increasing reliance on customer reviews for online purchases combined with the increasing use of AI, we can expect more regulatory (and likely plaintiff’s attorney) enforcement combating false or manipulated consumer reviews. Recognizing these trends, the FTC’s recently-effective Final Rule on the Use of Consumer Reviews and Testimonials focuses heavily on fake reviews and negative review suppression. Indeed, the Final Rule explicitly bans publishing reviews and testimonials from someone who does not exist, such as AI-generated reviews, fictional people and those with no actual experience with a business’s products or services. The rule also bars businesses from suppressing negative reviews or misrepresenting that the reviews represent all or most of the reviews submitted if negative reviews have been suppressed.
As the world awaits the next term of Donald Trump, marketers and advertisers are contemplating the potential changes in consumer protection regulations. While certain aspects of federal regulation and enforcement may have been relaxed during Trump’s first term, the Federal Trade Commission’s (“FTC”) consumer protection enforcement mandate is expected to remain a significant priority, although the pathways may differ significantly from the Kahn Commission.
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 myLawCLE webinar entitled “Sweepstakes, Contests, and Giveaways: Mastering the Legal and Regulatory Landscape” on December 3 from 1:00 – 3:10 P.M. (EST).
On November 15, 2024, the Federal Trade Commission (“FTC”) published its amendments to its Negative Option Rule, retitled as the Rule Concerning Recurring Subscriptions and Other Negative Option Programs (the “Final Rule”) in the Federal Register.
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 published an article in New York Law Journal entitled “FTC's New 'Click To Cancel' Rule Is Here, But Will It Survive Judicial Challenge?.” In the article, Andy and Morgan discuss how automatic renewals for services—or “negative options”—continue to face amended laws. However, this has resulted in a patchwork of various regulations at the state and federal level, making absolute compliance a difficult proposition for companies.
Olshan Frome Wolosky LLP today announced that 35 attorneys across all of the firm’s practices have been selected to the 2024 New York Metro Super Lawyers® list. Twenty-seven lawyers have been named as “Super Lawyers” and eight have been named as “Rising Stars.” While on average no greater than five percent of the total lawyers in each state are selected for the Super Lawyers lists, thirty-eight percent of Olshan’s lawyers have been selected for this honor in 2024.
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 Bloomberg Law article (subscription required) on the legality of the recent sweepstakes launched by Elon Musk’s super political action committee America PAC, which is awarding a daily prize of $1 million to a swing state voter.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Claudia Dubón, a partner in the firm’s Corporate/Securities Group, published an article in New York Law Journal entitled “New Cosmetic Regulations Dramatically Changing the Compliance Landscape.” In the article, Andy and Claudia discuss the cosmetics labeling compliance requirements in the Modernization of Cosmetics Regulation Act of 2022 (MoCRA). Several provisions took effect on July 1, including requiring facilities that process or manufacture cosmetic products to register with the FDA. The product label must also include the contact information of the responsible person(s) for facilitating the reporting of adverse events. “MoCRA is arguably the most significant expansion of the FDA’s regulation of cosmetic products in decades,” Andy and Claudia explain. “These requirements will apply to manufacturers and marketers (among other various parties in the cosmetic space), who will need to carefully consider their and their suppliers’ compliance obligations under these new regulatory requirements.” They add that more MoCRA regulations may be forthcoming, including good manufacturing practices (GMPs) for disclosing fragrance allergens in cosmetic product labeling and establishing and requiring standardized testing methods for detecting asbestos in talc-containing cosmetics. “Given the substantial and expanding compliance obligations, parties in the cosmetic space will need to be mindful of the enhanced regulation requirements to maintain compliance moving forward,” Andy and Claudia write.
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 published an article in Bloomberg Law entitled “FTC’s Focus on Subscriptions Protects Consumers: Legal Insight.” In the article, Andy and Morgan provide a comprehensive overview of the complexities surrounding automatic renewal subscriptions, a payment model increasingly used by e-commerce businesses. The article offers critical advice for companies looking to navigate the evolving regulatory landscape, particularly in light of recent state and federal developments. Andy and Morgan highlight key areas of focus, including the importance of clear enrollment terms, streamlined cancellation processes and the implications of the FTC’s recent actions against major players like Amazon and Adobe. "Companies should ensure customers aren’t forced to reject a barrage of offers before the cancellation request is processed or are somehow taken out of the cancellation path if they are considering a save offer," they advise. Andy and Morgan emphasize that businesses must stay ahead of regulatory changes to avoid costly litigation and maintain consumer trust.
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 published an article in Attorney at Law Magazine entitled “FTC and States Continue to Prioritize Automatic Renewal Regulation and Enforcement.” In the article, Andy and Morgan discuss the recent regulations impacting subscription paths and payment models. “Because consumers are charged until they affirmatively cancel,” they note, “the regulatory scrutiny of these programs has continued to increase, both on the federal and state levels.” In light of the Biden administration's recently announced proposals regarding cancellations, this topic continues to be at the top of consumers' minds. Staying compliant requires vigilance and adaptation to evolving legal landscapes. Andy and Morgan write, “As active litigation unfolds ahead of the 2025 trial, attorneys should be mindful of the FTC’s position on automatic renewal programs and the newfound emphasis on transparent user experiences for consumers.”
Olshan announced that eight of the firm’s lawyers have been recognized for inclusion in the 2025 edition of The Best Lawyers in America and three lawyers have been recognized to the “Ones to Watch” list.
The United States Patent and Trademark Office (“USPTO”) is constantly adapting to the changing world, which now includes the virtual world, and more and more trademark applicants are seeking to obtain trademark protection for virtual goods and services. As a reminder, the USPTO has adopted an international system of classifying goods and services in trademark applications, with 45 different categories. There is some confusion about how virtual goods and services are classified.
Olshan Frome Wolosky LLP has been recognized by The Legal 500 US in its 2024 edition as a Leading Law Firm. The Advertising Practice has again been ranked along with three attorneys. The Shareholder Activism Practice has again been ranked as a Tier One practice, a position it has held since the rankings’ inception, including six of the practice’s attorneys. The rankings are based on feedback from clients, peers and The Legal 500’s independent research.
Without waiting for new federal laws or federal regulators to take action against drip pricing, California is once again leading the way by enacting “Hidden Fee Statute” SB 478, which prohibits businesses from advertising or listing a price for a good or service that does not include all required fees or charges other than certain taxes (such as sales tax) and shipping costs. While this law applies to California sales, given the borderless nature of ecommerce, the mandatory pricing disclosure law will likely impact many businesses, particularly those that use the internet for sales.
The failure to comply with National Advertising Division (“NAD”) review processes typically results in a referral to the Federal Trade Commission (“FTC”). This strong enforcement deterrent results in a reported 97% compliance rate with NAD decisions. Recently, NAD has been expanding the agencies to which it refers advertisers that have failed to comply with its rulings or participate in its processes. As discussed below, NAD recently referred the advertising claims of a crisis pregnancy center to the Massachusetts Attorney General for possible enforcement action. In addition, NAD has developed a referral relationship with leading social media platforms, such as Meta, resulting in prompt enforcement of NAD’s recommendations.
I recently had the privilege of co-presenting on legal issues involving “green” claims at ACI’s 2024 Food Regulation Conference. A notable developing trend that was discussed during our panel is the increasing scrutiny of aspirational environmental benefit claims, such as a pledge to be carbon free by 2050.
Olshan’s Advertising, Marketing & Promotions Group was named a leading Tier 1 law firm by Media Law International. MLI’s 2024 ranking guide, covering firms and practitioners with media law experience across 60 jurisdictions globally, recognized Olshan for its excellence. Employing a multidisciplinary approach, Olshan integrates Brand Management & Protection and Advertising lawyers to offer knowledgeable, solutions-focused advice. View the rankings and editorial in MLI’s 2024 guide.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, will speak on the panel “What It Really Means to be ‘Green’ in 2024: Mastering the Intricacies of Making and Substantiating Green Claims in Today’s Regulatory Landscape” as part of ACI’s 8th Annual Summit on Food Law – Regulation, Compliance and Litigation on May 1, 2024, at 1:15 p.m. at The Metropolitan Club, Chicago, IL. The panel will explore the new proposed changes to the Green Guides and the impact that FTC’s contemplated rulemaking could have on environmental marketing claims, differences in the FTC’s guidance and state law requirements for the term “recyclable,” how to manage the risks associated with vendors making claims about your products and green claim trends that are vulnerable to class-action activity.
You can register for the Summit here.
The war on drip pricing continues. New York’s new credit surcharge law is now in effect requiring businesses to provide important pricing disclosures. The law amends and clarifies New York’s existing credit card surcharge law, General Business Law Section 518. Key requirements are outlined below.
Chair of the firm's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will speak on the panel “Shining a Light on ‘Dark Patterns’: What All Companies Must Know About this Rising Area of FTC Advertising Enforcement” as part of ACI’s 7th Annual Legal, Regulatory, and Compliance Forum on Advertising Claims Substantiation on February 9, 2024, at 9:45 a.m. The panel will explore how the Federal Trade Commission (FTC) and other enforcers are rapidly increasing their focus on “dark patterns” in advertisement designs, which are practices that regulators believe can trick or manipulate consumers into buying products or giving up their privacy. In addition, the Commission also just released a new proposed rule governing subscription offerings/negative options. Topics to be considered will include: specific website design and advertising practices that are currently triggering enforcement activity; the types of allegations being brought by the FTC in cases where dark advertising patterns are alleged; how companies can avoid being the next target in this rising wave of deceptive advertising enforcement; restoring your product’s reputation after it falls prey to a dark pattern; and the FTC’s latest amendments to the rules governing subscription offerings/negative options and junk fees.
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 published an article in New York Law Journal entitled “Regulation of Automatic Renewals Remains Key Issue for Lawmakers.” In the article, Andy and Morgan discuss the revision of statutes surrounding subscription renewal fees, specifically those that are relevant to the cancellation of automatic renewals.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in Bloomberg Law entitled “New Laws, Consumer Actions Will Help Us Say Goodbye to Junk Fees.” In the article, Andy discusses the increasing significance of surcharges and undisclosed fees impacting consumer purchasing decisions.
Both federal and state legislators and regulators continue to focus on auto-renewal/continuous service programs, particularly emphasizing the necessity of online cancellation for orders initiated via the Internet. In March 2023, the FTC aimed to modernize its “negative option rule,” aligning it with state laws and increasingly common continuity programs. The proposed FTC Rule Concerning Recurring Subscriptions and Other Negative Option Plans would mandate disclosure of continuity program terms and cancellation processes before acquiring a consumer's billing ...
Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and Olshan Co-Managing partner, Chair of the firm's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman published a Law360 (subscription required) article entitled “Open Issues At The USPTO And Beyond After Biden AI Order” In the article, they discuss how President Biden’s Executive Order relating to AI could potentially make it harder for businesses to protect AI-created inventions.
Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and Olshan Co-Managing partner, Chair of the firm's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman published a New York Law Journal (subscription required) guest column entitled “Will Biden’s AI Executive Order Give Clarity on the Issue of Inventorship?” concerning President Biden's AI Executive Order and how AI output will be categorized as intellectual property.
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”).
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.
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 ...
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, will speak on the panel “Food Marketing, Advertising and Promotion Essentials: Ensuring Claims Compliancy and Meeting Substantiation Standards Relative to Health, Nutrition, Structure and Function” as part of ACI’s Food Law and Regulation Boot Camp virtual conference on July 19, 2023, at 1:45pm (CT). The panel will explore the relationship between food product labels and advertising and promotion, how to distinguish ...
The Federal Trade Commission (“FTC”) has filed a complaint against Amazon.com, Inc. (“Amazon”), asserting that the online retail giant “knowingly duped millions of consumers into unknowingly enrolling in its Amazon Prime service.” Specifically, the FTC alleges that Amazon has used “dark patterns” to trick consumers into enrolling in automatically-renewing Prime subscriptions, and made it incredibly difficult for consumers to cancel those subscriptions.
The complaint, filed in the District Court for the Western District of Washington on June 21, 2023, is ...