CL&P Blog

Ninth Circuit Allows Claims of Deceptive Food Marketing to Go Forward

by Brian Wolfman

In Williams v. Gerber Products Company, No. 06-55921 (Apr. 21, 2008), the plaintiff class pleaded common-law misrepresentation and breach of warranty claims, as well as claims under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., and California’s Consumer Legal Remedies Act, Cal. Civil Code § 1750 et seq.  The class challenged five features of the packaging used by Gerber to sell its Fruit Juice Snacks, including use of the words “Fruit Juice” alongside pictures of oranges, peaches, strawberries, and cherries. The plaintiffs claimed that this advertising was deceptive because the product contained no fruit juice from any of the fruits pictured on the packaging. The plaintiffs’ other claims were similar — such as their challenge to Gerber’s claim that its product is made “with real fruit juice and other all natural ingredients,” even though the two biggest ingredients are corn syrup and sugar. The district court granted Gerber’s motion to dismiss on the ground that its statements were not likely to deceive a reasonable consumer and that at least one of the statements was non-actionable puffery. The Ninth Circuit reversed. Here’s a key part of the Ninth Circuit’s reasoning:

Federal Reserve Proposing New Protections for Credit Card Consumers

The top story in the Washington Post this morning is this story entitled "Fed to Pursue Aggressive Checks on Credit Cards." The Federal Reserve, along with the Office of Thrift Supervision and the National Credit Union Administration, will issue proposed regulations today that seek to put a halt to certain credit card practices. This excerpt from the Post story provides an overview:

The proposed regulations, which could be finalized by year's end, would label as "unfair or deceptive" practices that consumers have long complained about. That includes charging interest on debt that has been repaid and assessing late fees when consumers are not given a reasonable amount of time to make a payment. When different interest rates apply to different balances on one card, companies would be prohibited from applying a payment first to the balance with the lowest rate.

We will post the proposal itself when it becomes available.

Table of Contents for the Forthcoming Issue of the Journal of Consumer Affairs

  Here is the table of contents for for the forthcoming Spring 2008 issue of Journal of Consumer Affairs (Volume 42, Number 1 ):
2008 Distinguished ACCI Fellows

Editorial Prelude: Remembering Luminary Leaders Stewart M. Lee and E. Scott Maynes
            Brenda J. Cude

No Pain, No Strain: Impact of Health on the Financial Security of Older Americans
            Hyungsoo Kim and Angela C. Lyons

The Effects of Summary Information on Consumer Perceptions of Mutual Fund Characteristics
            John Kozup, Elizabeth Howlett, and Michael Pagano

Recognizing Consumer Issues in DTC Pharmaceutical Advertising
            Marla B. Royne and Susan D. Myers

Bits Briefs & Applications
What Am I Drinking? The Effects of Serving Facts Information on Alcohol Beverage Containers
            My Bui, Scot Burton, Elizabeth Howlett, and John Kozup

Notes & Observations
Use, Misuse, and Abuse of Content Analysis for Research on the Consumer Interest
            Les Carlson

Potential and Pitfalls of Applying Theory to the Practice of Financial Education
            Angela C. Lyons and Urvi Neelakantan

Measuring What Really Matters to Consumers
            Robert N. Mayer
            
Editorial Postlude
            How Do You Know That?
            Herbert Jack Rotfeld

Avvo Wins First Amendment Defense in Lawyer-Ranking Suit

by Greg Beck

A while back I wrote about a lawsuit by Seattle attorneys against the website Avvo.com, which provides rankings of lawyers. This week the Western District of Washington solidly rejected all plaintiffs' claims and granted Avvo's motion to dismiss the case.

While expressing skepticism about the usefulness of lawyer rankings, the court held the ratings to be protected opinion under the First Amendment. As the court noted, it is obvious to any reasonable reader that Avvo's numerical ranking of lawyers is subjective and does not convey any facts capable of being proved true or false. That decision is good news for any websites or other media that provide reviews. A review of a product, service, lawyer, or anything else is inherently subjective, and the targets of unfavorable reviews shouldn't be able to recover damages any time they disagree with a reviewer's opinion.

The court also held that the website was not subject to Washington's Consumer Protection Act because providing an information clearinghouse about lawyers to the public is not "trade or commerce" as used in the Act. Like many other plaintiffs in Internet cases, the plaintiffs here made the mistake of claiming that placing advertising on the website made the site "commercial." But if communications became commercial whenever accompanied by advertising, even the New York Times would have to be regarded as commercial speech. Courts are wise to recognize that speakers sometimes like to be compensated for their time, and supporting communications with advertising does not change the nature of the underlying speech.

Lawyer ratings will never be perfect, but consumers generally benefit from access to more information about the products and services they use. This decision is therefore a victory for consumers.

CL&P Roundup

by Deepak Gupta

• Chair of Product Safety Agency Says Beefing Up Her Agency Would "Harm" Americans:  In the wake of growing public concern over the number of unsafe toys and other products on the market, the chair of the Consumer Product Safety Commission, Nancy Nord, has told Congress that a Senate safety bill--which would more than double her anemic agency budget and expand its authority--would "put the American people at greater risk."  [U.S. PIRG Consumer Blog] [Washington Post].
• Postgame Coverage of the Arbitration Hearing:  For those of you who didn't get to attend or watch yesterday's hearing on binding mandatory arbitration, we plan to bring you the next best thing: Paul Bland of Public Justice will be posting his own expert observations on the proceedings.  In the meantime, here's some coverage from around the web: How Arbitration Steals Your Day in Court [MSNBC] and Liveblogging the House Judiciary Subcommitee Hearing [Consumerist].
• FTC Workshop on Privacy and Advertising:  On November 1st and 2nd, the Federal Trade Commission is holding a two-day workshop to address consumer protection issues raised by the tracking of consumers' activities online in connection with online advertising/behavioral advertising.  The agenda is available here.  Those who are interested but cannot attend can watch a live webcast here.
• Numbers Won't Be Dropped from the Do-Not-Call List (At Least For Now): The FTC has announced that it's not going to drop numbers from the do-not-call list, at least pending a final Congressional or agency decision on whether to make registration permanent.  Because of an internal scrubbing program that removes reassigned or disconnected numbers, there's no need to drop the numbers on the list.

Call for Papers on Advertising Regulation

We received the following Call for Papers:

Manuscripts are being solicited for an upcoming issue of Journal of Advertising devoted to  advertising regulation and self-regulation. Authors may submit empirical studies, analysis of legal issues currently faced by government or trade groups, or conceptual analysis of current issues in light of the existing literature.  Papers should be theoretically well grounded and contain significant managerial and/or policy implications. The primary criterion for assessing fit with the special issue is whether the paper provides new insight into theory and/or practice of advertising regulation or self-regulation and their impacts on business practices.

Topics that would be appropriate for this special issue can focus on either government actions, non-government trade associations programs run without government sanction or control secondary regulatory impacts on advertising practices such as regulation, self-regulation by mass media vehicles. Specific topics can include, but are not limited to:

• Specific creative techniques that can raise regulatory concerns.
• Assessments of the circumstances under which self-regulatory organizations efforts influence advertising outcomes in either the U.S. or other countries.
• Evidence requirements for regulatory concerns or self-regulation.
• Regulatory issues involving specific target markets (e.g., children, low income consumers, consumers with limited education).
• Regulatory or legal issues in international advertising.
• Client/agency relationships and responsibilities for regulatory issues.
• Regulatory issues pertaining to new media, including privacy issues.
• Regulation of specific media types that impact advertising content (e.g. outdoor advertising; child-oriented television).
• Regulation and self-regulation of specific product categories such as pharmaceutical advertising to doctors or consumers (DTC), OTC drugs or nutritional supplements, food,  tobacco, guns, or alcohol.
• Relationship of non-government trade groups to government regulators.
• Impact of government decisions on business activity, self-regulation practices or consumer trust in advertising messages.

Submission Information
Papers are to be sent via a special email address at jaspecialissue@villanova.edu, stating in the subject line the general research approach. Manuscripts are to follow current JA manuscript guides found at http://www.ja.memphis.edu/inforauthors.htm

Manuscripts are due by April 1, 2008.

Yet Another Mattel Lead-Paint Recall: This Time It's Barbie Accessories

According to this Washington Post story, Mattel is instituting a major recall for the third time this summer, again because its toys are tainted with lead-based paint.  The recall involves more than 770,000 toys, 675,000 of which are Barbie accessories, including Barbie Dream Puppy House, in which lead paint was found on the dog.  This BBC story discusses recall of the same products in the UK.

New York's Attorney Advertising Rules Held Unconstitutional

The Northern District of New York ruled today that New York's amended rules against attorney advertising are unconstitutional and permanently enjoined enforcement of most of the challenged provisions. The court agreed with Public Citizen's argument that the state had not shown that the rules were necessary to help consumers and were not narrowly tailored to the state's asserted purpose. In fact, the rules restricted truthful advertising that would benefit consumers.

Meanwhile, more state bars are moving toward enhanced restrictions on advertising that are patently unconstitutional. Louisiana and Indiana are both considering new rules that in many ways resemble the rules held unconstitutional in New York. Florida is also considering expanding its already draconian rules to cover websites. And the New Jersey Supreme Court is considering whether the state may constitutionally prohibit attorneys from calling themselves "Super Lawyers." In all these cases, the Federal Trade Commission has opposed the restrictions on speech in the interest of consumers. In the New Jersey case  the FTC filed an excellent amicus brief that I think clearly explains how unnecessary advertising restrictions accomplish little other than squelching competition and leading to higher prices.

Another Form of Equity Stripping

Tuesday's New York Times had an article, "New Scheme Preys on Desperate Homeowners".  A quote: 

With the housing market in decline, financial predators are finding yet another way to take advantage of people who fall behind on their payments.

The schemes take various forms and often involve promises to distressed homeowners of cash upfront, free monthly rent and a chance to retain their houses in the long run. But in the process, someone else takes over the deed, borrows as much as possible against the value of the house and pockets the cash. And, almost always, the homeowners still end up losing their homes.

Is it Unethical to Match Consumers with Lawyers Online?

by Greg Beck

Web startup Avvo.com jumped into the business of rating lawyers this month and almost immediately found itself the defendant in a lawsuit that seeks to certify a class of all lawyers rated by the system.  The suit claims that the rating system is arbitrary, noting that the dean of Stanford Law School was rated as “average,” while Lynne Stewart, who was convicted of providing material support to terrorists and disbarred, received a rating of “very good.”  According to the complaint, the site engages in unfair and deceptive practices by “encourag[ing] consumer trust in a fallible system.” 

As Eric Goldman points out in his Technology & Marketing Law Blog, the design of Avvo's system may take it outside the immunity for website publishers afforded by the Communications Decency Act.  But while the site could likely be redesigned in a way that protects it from liability under the CDA, the complaint raises another troubling issue by claiming that running the website is a violation of state attorney ethics rules.

New Technologies for Marketing to Children

Several consumer groups, including the Center for Digital Democracy and the Center for Science in the Public Interest, have produced a new Report on how businesses are using new technologies to market foods and beverages to children.   Among the technologies are cell phones, instant messaging, social networking sites, blogs, games, and videos available at video web site such as YouTube.  Because parents are less likely to use some of these technologies, they are probably less aware of the marketing techniques and consequently might not discuss them with their children.  Indeed, some of the techniques seem designed to evade parental scrutiny.  A quote:

KFC used a high-pitched tone as a promotional "buzz" device for a recent "interactive advertising campaign." The MosquitoTone™ was embedded in TV commercials to launch KFC's new "Boneless Variety Bucket™." In its press release, the company explained that the popular cell phone ring tone "is too highpitched for most adults to hear because most people begin to lose the ability to hear high frequency tones starting at age 20. This is a fact not lost on young Americans who seek the sound for clandestine ring tones that don't turn the heads of nearby adults." In the TV commercial, the secret sounds were designed to attract the attention of young viewers and "drive" them to a Web site, where they could enter a contest to identify exactly where the tones could be heard in the ad, in order to win $10 "KFC gift checks" redeemable for the new chicken meal at any KFC. The company's chief marketing officer called the innovative buzz campaign "the 21st Century dinner bell."

I wonder what KFC did with the resulting list of people who could hear the cell phone ring.  The Report lists many other examples of the use of the new technologies and describes marketing techniques that I, at least, had never heard of (my favorite name was "viral video").  You have to admire the ingenuity of marketers and their ability to find new opportunities, but as the father of teenagers who use many of the technologies (I often find it hard even to use the blog-posting technology, as this posting may demonstrate), I find it anxiety-provoking. The Report calls upon the FTC and Congress to look into the matter and to develop new rules for marketing food and beverages to children.

Times Articles on the Use of Marketing Lists to Bilk the Elderly and Coping With Credit Obligations

Last weekend, The New York Times had a pair of front-page articles--both of which were painful to read--that raised consumer law issues.  Sunday's article, "Bilking the Elderly, With a Corporate Assist," described how con artists use lists of elderly consumers obtained from list-sellers to identify elderly consumers who can be swindled.  Two quotes: 

InfoUSA advertised lists of “Elderly Opportunity Seekers,” 3.3 million older people “looking for ways to make money,” and “Suffering Seniors,” 4.7 million people with cancer or Alzheimer’s disease. “Oldies but Goodies” contained 500,000 gamblers over 55 years old, for 8.5 cents apiece. One list said: “These people are gullible. They want to believe that their luck can change.” 

* * *

“Only one kind of customer wants to buy lists of seniors interested in lotteries and sweepstakes: criminals,” said Sgt. Yves Leblanc of the Royal Canadian Mounted Police. “If someone advertises a list by saying it contains gullible or elderly people, it’s like putting out a sign saying ‘Thieves welcome here.’ ”

There's a lot more in the article about one of the victims, the role of the list brokering industry and financial institutions, and efforts by government officials to put a stop to the problem.  One surprising side note: the article reports that the telemarketing industry has grown despite the creation of the "Do Not Call" list.

The article in Saturday's Times, headlined "Couple Learn the High Price of Easy Credit," reported on how one middle-class family juggles their debt payments. 

Would you call beer "organic" if it were made with non-organic hops? USDA would.

USDA’s history of regulating organic food is checkered, to say the least. In the latest installment, USDA is proposing to allow 38 more non-organic substances in food labeled “organic.” And the agency provided just seven days for public comment on the rule. The comment period ends tomorrow, May 22.

This story never seems to take a positive turn.  For present purposes, we can start in December, 2000, when USDA issued labeling standards for the term “organic” that violated the Organic Foods Production Act (OFPA). OFPA says that products labeled “organic” cannot contain non-organic ingredients unless they have been placed on the National List of Allowed and Prohibited Substances. USDA's rule, in contrast, permitted products labeled “organic” to contain non-organic substances so long as producers obtained certification that organic versions of the relevant ingredients were not available. Why should it matter whether substances are on the list?  It seems to me that the process of getting a substance listed is key to OFPA’s effectiveness:  A producer petitions for a substance to be listed; the National Organic Standards Board issues a recommendation on the petition; and USDA can add the substance to the National List only after notice-and-comment rule making in which members of the public can voice their opinions. Under USDA’s rule, none of this had to occur.

Puffery, the Magic Dragon

by Steve Gardner

As with pornography, judges seem to believe that they know puffery when they see it.  More precisely, courts sometimes use puffery as a pretext for dismissing deceptive sales practice lawsuits that they don’t think much of. An excellent summary of exemplary opinions can be found in a new article in the National Law Journal for April 9, 2007, The Power of Puffery, by J. Russell Jackson.

The author is with a big old defense firm, so not surprisingly, he likes the variety of ways that courts use to boot a case based on a finding of puffery. Also not surprisingly, the author fudges somewhat in his description of consumer law, the better to meet his argument: “[T]he First Amendment to the U.S. Constitution protects commercial speech about products, so long as it is not false.”  More accurately, the Supreme Court has said that commercial speech can’t be “misleading.” Central Hudson Gas & Electric Co. v. Public Service Comm’n of New York, 447 U.S. 557 (1980).

There is a whale of a difference between outright falsity and misleading claims. For example, the author’s statement about commercial speech is false.  Other points in his article are merely misleading.

Consumer Law Publications

We recently obtained permission to reprint on the Blog abstracts of and links to articles published on the Social Science Research Network (SSRN).  As many of our readers will know, numerous writers on legal and other subjects post articles to SSRN when (or even before) they are submitted to law reviews, enabling the articles to be read long before they are available in print.  Consequently, SSRN has become perhaps the most important and certainly the most timely place to find current legal scholarship.  Seven recent abstracts on pieces relevant to consumer law , together with links, are pasted in below:

More on First Amendment Challenge to New York Lawyer Advertising Rules

By Brian Wolfman 

This earlier post describes the lawsuit by an upstate New York law firm and Public Citizen to strike down new New York lawyer advertising restrictions on First Amendment grounds.  That post discusses the various constitutional problems with the rules - - which restrict both commercial and non-commercial speech - - and links to earlier posts concerning the rules.  The plaintiffs have now filed their brief in support of a preliminary injunction, which details the new restrictions and the plaintiffs' First Amendment arguments.   

Public Citizen Files Suit Against NY Attorney Ad Rules

by Greg Beck

On behalf of its members and of New York attorney James L. Alexander, Public Citizen filed suit today against the chief counsels of New York’s lawyer disciplinary committees to stop enforcement of new rules restricting attorney advertising in the state.  Although the rules are supposedly designed to prohibit false and misleading advertising, they are really anti-consumer in effect.  Public Citizen’s complaint, available here, contends that the rules are too vague and constitute an unconstitutional restriction on speech in violation of the First Amendment.  The rules are fraught with problems, including:

1. They create a complete blackout on attorney solicitations to personal injury victims for a period of thirty days after the event causing the injury.  This rule will leave injured consumers at the mercy of insurance companies, who are free to try to obtain a settlement during a time when the consumer is without representation.  It will also leave consumers without representation at a time when it may be critical to preserve evidence and to take steps to protect their rights.
2. They contain no exception for nonprofit attorneys soliciting potential clients for no-fee legal representation.  For example, the rules would prevent nonprofit legal organizations from contacting individuals at political demonstrations who have been physically harmed by police officers to inform them about their rights and the availability of pro bono legal help.

New York AG Settles Adware Charges

by Greg Beck

New York’s Attorney General announced a settlement yesterday with three big companies, Priceline.com, Travelocity.com, and Cingular Wireless, accused of using software called Direct Revenue to deliver unwanted ads to computer users. In a 2006 lawsuit, the Attorney General alleged that Direct Revenue installed its software onto millions of computers without adequate notice or consent. Once installed on a user’s computer, the software monitored Internet usage, collected data typed into web forms, and delivered a steady stream of unwanted advertising. To make matters worse, once installed, the software was difficult to remove.

The settlement marks the first time that advertisers, instead of just the adware maker itself, have been held responsible for this abusive sort of advertising. That seems like a smart strategy. In this case, Priceline, Travelocity, and Cingular had spent hundreds of thousands of dollars advertising their services through Direct Revenue. Targeting the advertisers could help dry up the source of funding that keeps adware companies in business. Although the financial settlement was relatively small, a total of $100,000 between the three companies, the companies also agreed to use only adware programs that provide notice and consent to users and make it easy for users to uninstall. Of course, few computer users, if fully informed, will willingly choose to install adware on their computers.

The Digital Millennium Copyright Act—A New Thanksgiving Tradition

by Greg Beck

For some reason, the day after Thanksgiving has become known as a day of shopping.  Retailers, eager to start off the holiday shopping season, tout low-low prices on "Black Friday" to get consumers into the store.

Prior to Thanksgiving, these prices are (in theory) supposed to be a secret, but on the Internet it is common to see sites like BlackFriday.info and FatWallet post Black Friday prices up to a month in advance.  In response, retailers have invented their own holiday tradition: targeting these sites with takedown notices under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. sec. 512.

Best Buy started off the holiday cheer this month by sending a cease-and-desist letter to BlackFriday.info, demanding that it take down Best Buy's upcoming sales prices.  BlackFriday complied under protest, noting in a brief statement:  "While we believe that sale prices are facts and not copyrightable, we do not want to risk having this website shut down due to a DMCA take down notice." 

Public Citizen, the ACLU, and the NYCLU Comment on New York's Advertising Rules

by Greg Beck

As I've previously written, the New York courts are considering adopting new ethics rules restricting attorney advertising.  Today, Public Citizen, the ACLU, and the New York Civil Liberties Union submitted comments urging the courts to reject the proposed amendments in their entirety.  The comments, which you can read here, attack the constitutionality of the proposed amendments on three grounds:

1. The rules do not contain an exception for nonprofit attorneys, thereby restricting non-commercial and political speech at the core of the First Amendment.
2. The rules contain pointless restrictions on the content of attorney advertising that seem aimed more at limiting competition than helping consumers.  I wrote about these restrictions in more detail here.
3. The rules impose draconian burdens on Internet speech that would, for example, require us to print out a copy of this blog every time it is modified.  I covered this aspect of the rules here.

The proposed amendments have garnered a lot of negative publicity, especially in the blogosphere, and we hope that the courts will reconsider these blatantly unconstitutional rules.

FTC to Look Into Food Marketing to Kids

by Stephen Gardner

On October 25, the Federal Trade Commission announced its plans to issue "compulsory process orders to major food and beverage manufacturers and quick service restaurant companies in order to obtain information from those companies concerning, among other things, their marketing activities and expenditures targeted toward children and adolescents."

This is a significant development in the regulation of food marketing to kids. Of course, the proof of this pudding is in the eating, so it remains to be seen what the FTC does with the information it obtains.

In 2005, Congress directed the FTC "to prepare a report on food industry marketing activities and expenditures targeted to children and adolescent."  Pub. L. No. 109-108.

In March 2006, the FTC asked nicely for information, but the food industry failed to provide "information, especially empirical data, on the nature and extent of marketing activities and expenditures targeted to children and adolescents."

My organization, the Center for Science in the Public Interest (CSPI), filed a comment in response to the March 2006 proposal, urging the FTC to obtain "information on the nutritional quality of products marketed to children."

The FTC now proposes to do something akin to that — to demand information from about 50 companies about food advertised to children, including fast foods, breakfast cereals, snack foods, candy and gum, carbonated and noncarbonated beverages, frozen and chilled desserts, prepared meals, and dairy products, including milk and yogurt. Specifically, the FTC announced its need to obtain data about:

• The types of foods marketed to children and adolescents.
• The media techniques used to market products to children and adolescents.
• The amounts spent to market to children and adolescents.
• The amount of commercial advertising time that results from this marketing.

The FTC continued talking tough, cautioning that anyone who destroyed responsive data might be prosecuted criminally.  But at the same time, it indicated a willingness to second-guess itself, by asking for comments "whether the proposed collections of information are necessary for the proper performance of the functions of the FTC, including whether the information will have practical utility."

Since the FTC in the New Millennium has moved from being the "National Nanny" (as it was called in the 70's) to the Chicken Guarding the Foxhole, one must wonder what engendered this tough squawk from the FTC.  It might be the desire to come to the rescue of the food industry, to prevent it being sued, in light of recent developments.

FTC Proposes to Ban Most Prerecorded Telemarketing Messages

    By Brian Wolfman

    In an October 4, 2006, Federal Register notice, 71 Fed. Reg. 58,176, the Federal Trade Commission has proposed to prohibit all prerecorded telemarketing messages to consumers except where the seller has obtained the consumer's written consent to receive such prerecorded calls. 

Interestingly, the FTC's proposed rule was issued in response to a petition (which the agency denied) from the Voice Mail Broadcasting Corp. (VMBC) urging the FTC to permit all prerecorded messages to consumers with whom the seller had an "established business relationship."  According to the FTC, about 13,600 consumers responded to the petition, with over 13,000 opposing VMBC's position.  The FTC cited the overwhelming consumer opposition to VMBC's petition as one reason for the proposed rule.  Comments on the proposed rule are due by November 6, 2006.  An FTC synopsis of the proposal appears here.

How Far Can Companies Go to Regulate Use of Their Trademarks?

by Greg Beck

A scene in the pilot for NBC's new superhero drama Heroes shows one of the characters sticking her hand in a running garbage disposal and pulling out a mangled and bloody stump.  Due to the nature of her super powers, the hand heals itself within a matter of seconds.  Most viewers watching the gory scene (myself included) probably did not notice the name on the rim of the garbage disposal.  If you watch carefully, however, you can see that the disposal is an "In-Sink-Erator."  That is an actual brand of garbage disposal made by Emerson Electric Co.

Apparently upset by NBC's unauthorized use of a picture of its product, Emerson sued to block further distribution of the pilot episode.  Its complaint, which includes pictures of the ground-up hand, raises claims of unfair competion, trademark infringement, dilution by blurring and tarnishment, trade libel, and defamation.  It requests an order permanently restraining NBC from showing the pilot episode or from using any Emerson trademark without permission, and forcing NBC to destroy all existing copies of the show.  The complaint also demands attorneys' fees and damages, including money to conduct a corrective advertising campaign.

Blogosphere Aboil

So the ABA Journal reports about New York's proposed ethics rules that would make it difficult for attorneys to blog.

New York Sun on Attorney Advertising

by Greg Beck

Since this blog first covered the effect that New York's proposed advertising rules will have on attorney bloggers, the blogosphere has been abuzz about the new rules.  Legal blogs that have weighed in against the rules include the Volokh Conspiracy, the Trademark Blog, Recording Industry vs. the People, Law.com, Real Lawyers Have Blogs, and New York attorney Nicole Black at Sui Generis, one of the first to start blogging about the issue.  The FTC has also come down against the rules, concluding they are bad for consumers.

Now the story has  made the jump from the blogosphere to the mainstream press, as reporter Joseph Goldstein covered the issue in today's New York Sun.  It is clear from the article just how confusing the new rules would be in practice.  A federal defender who blogs on the Second Circuit Blog was unsure whether the rules would affect his blog.  Because the blog includes a short biography of the lawyer, there is no reason they would not.

Hopefully, the blog storm on the issue has resulted in some useful comments to New York's Office of Court Administration.  If you haven't yet commented, it's not too late.  The deadline has been extended until November 15.

Upcoming Program on Advertising and Marketing Law

by Jeff Sovern

The Committee on Consumer Affairs of the Association of the Bar of the City of New York (of which I am a member) is presenting "Hot Topics in Advertising & Marketing Law 2006" on Wednesday, September 27 from 9:00 a.m. to 12:30 p,m, at the City Bar, 42 W. 44th Street, New York City.  The program covers recent cases and legislative developments in the areas of general advertising, advertising to children, retail practices, branded entertainment, and sweepstakes and contests, as well as an update on regulatory enforcement priorities.  For more information, call 212-382-6663 or register online.

New York Bar: Speech Should Be Restricted as Much as Possible

by Greg Beck

Last week I wrote about the misguided proposed amendments to New York's ethics rules that would make it next to impossible for lawyers in New York to run a blog or, in many cases, even send an email.  In the comments to my last post, David Giacalone of the f/k/a blog pointed out that the problems with the rules go far beyond their effect on bloggers.  At their core, New York's proposed rules show a deep mistrust of the First Amendment and its protection of lawyer advertising.  In fact, the website of former New York Bar Association president A. Vincent Buzard argues that lawyer advertising should be restricted "to the fullest extent permitted, within the limitations of the First Amendment."

The proposed new rules in combination seem geared toward outlawing anything that might make an attorney's advertisement even remotely effective.  Imagine if New York had an Athletic Shoe Manufacturers' Association that imposed these restrictions on athletic shoe advertising in the name of preventing confusion among consumers.

• No use of actors to play athletes, referees, or spectators.  (Sec. 1200.6(d)(4) & (6) of New York's proposed rules would ban the use of actors to play judges, lawyers, and clients.)

• No showing the use of sports stadiums, tracks, or fields.  (Sec. 1200.6(d)(5) would ban showing the use of courtrooms and courthouses.)

This Blog Is False and Misleading (in New York)

by Greg Beck

In the name of protecting consumers from false and misleading lawyer advertising, New York is proposing draconian new restrictions on Internet communications and other forms of attorney advertising that will directly impact attorneys who maintain blogs or websites in New York, or in many cases who simply send an email into the state.  Instead of protecting consumers, however, the proposed rules will burden completely truthful and non-misleading communication by attorneys, and will serve no purpose other than to deprive consumers of useful information about their legal rights, protect established law firms from competition, and render many aspects of the Internet largely unusable for New York attorneys.

Stripped to their essence, the proposed amendments would define the term "advertisement" extremely broadly as any public communication made "by . . . a lawyer . . . about a lawyer."  Sec. 1200.1(k). This definition explicitly includes all forms of communication on the Internet, including websites, email, and instant messaging.  Sec. 1200.1(m).  There is no requirement that the speech be commercial in nature or related to the lawyer's practice of law.