Monthly Archives: April 2016

ILN Today Post

FDA Scrutinizes Cosmetics Claims, Continues to Evaluate Imports

The Food and Drug Administration (FDA) continued to exercise its increasingly conservative approach to cosmetics claims by issuing numerous warning letters to cosmetics companies and continuing to carefully scrutinize imported products. The FDA’s agenda demonstrates that regulating cosmetics has become an increasingly important priority for the agency.

The FDA was particularly concerned with claims for cosmetic products that indicated that the product could affect a structure or function of the human body or treat, prevent, or mitigate a disease or its symptoms, as these types of claims indicated that the product was a drug rather than a cosmetic. The FDA issued several warning letters to major cosmetics manufacturers for claims that products could “reduce visible redness,” “treat dark spots and discolorations,” “change the anatomy of a wrinkle,” “provid[e] noticeable lift,” and “stimulate collagen production.”

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ILN Today Post

Green Marketing Still Needs Support

Environmental concerns dominated the headlines throughout 2015. For marketers, this meant an increase in the development and supply of environmentally conscious products and services and a renewed focus on “green” attributes in their marketing. Not surprisingly, consumers and regulators responded by increasing their scrutiny of “green marketing” and their willingness to take legal action based on perceived “green washing.”

As in years past, the Federal Trade Commission (FTC) remained the most active regulator of environmental benefit marketing claims, seeking to ensure that all “green marketing,” regardless of media, complied with its Guides for the Use of Environmental Marketing Claims (Guides). It sent warning letters to manufacturers and retail sellers of certain “green” products and services, reminding them that it monitored the marketplace and would challenge advertising it deemed inconsistent with the Guides.

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ILN Today Post

Daily Fantasy Sports Poses Challenges for Players and Regulators

A new industry burst into the mainstream in 2015. At the beginning of 2015, daily fantasy sports was a nascent business taking advantage of gaps in federal regulation to find deep-pocketed backers among major media companies, professional leagues, and their owners. Flush with new investment, the major competitors in this business, FanDuel and DraftKings, blanketed sports media with advertising and discovered an audience aching for an opportunity to spend money. In one weekend in October of 2015 alone, FanDuel and DraftKings collected more than $45 million in entry fees. Daily fantasy sports had become a multi-billion dollar industry.

By the end of 2015, however, the industry seemingly faced every type of legal challenge imaginable. The State of Nevada ruled that daily fantasy sports was unlicensed and, therefore illegal, gambling. In the months that followed, states including Texas, Illinois, and Hawaii made similar rulings.

 

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ILN Today Post

Children’s Privacy at the Heart of Regulatory Action

Regulators and industry members continued to focus attention on children’s privacy, particularly in response to the rush of technology involving child-directed toys and child-directed apps.

Last year, Google launched YouTube Kids, which uses algorithms to filter and select age-appropriate content from YouTube. After the launch, consumer groups complained to the Federal Trade Commission (FTC) about blurred lines between advertising and content for children and the possibility of children discovering inappropriate content using the app’s search mechanism.

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ILN Today Post

For Alcohol Brands, New Is Not Always Better

In 2015, a contentious “new” alcohol product — Palcohol “powdered alcohol” — was, somewhat surprisingly, approved for labelling and sale by the U.S. Alcohol and Tobacco Tax and Trade Bureau, setting off a chain reaction among the states to counteract the TTB’s approval. From March to December, nearly a hundred bills to ban this type of product were introduced in over 40 states, the District of Columbia, and Puerto Rico, a reminder to the industry that states still hold much power when it comes to alcoholic beverages.

However, in today’s “disruption” economy, the state’s absolute power to control industry practices is increasingly being questioned, a recent example being a challenge by an operator of retailer digital advertising display units to a California law that purportedly prohibited alcoholic beverage suppliers from buying space on those units because a percentage of the ad buy revenue necessarily flowed to the retailers.

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NLRB Argues “Misclassification” of Independent Contractors Is Unfair Labor Practice

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the hospitality industry: “NLRB Argues ‘Misclassification’ as an Independent Contractor Is Unfair Labor Practice.”

Following is an excerpt:

In a further incursion into the area of the gig and new age economy, the Regional Director for the National Labor Relations Board’s Los Angeles office has issued an unfair labor practice complaint alleging that it is a violation of the National Labor Relations Act (the “Act”) for an employer to misclassify an employee as an independent contractor. …

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Employers Urged to Invest In Wellbeing of Employees

Employers are losing up to 27 days of productive time per employee each year as a result of high stress and lack of physical activity, new research has revealed.

The study, which was conducted by VitalityHealth, Mercer, the University of Cambridge and RAND Europe, found that productivity varies enormously between industries, with some sectors losing almost 27 days of productive time per employee compared to a national average of 23.5 days.

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ILN Today Post

Limitations on Motions to Dismiss in FINRA Arbitration

There are advantages to financial institutions in resolving disputes with investors through arbitration under the auspices of the Financial Industry Regulatory Authority (FINRA) rather than in court. These include streamlined procedures, reduced discovery costs, faster decisions, and finality. There are, however, important procedural issues to consider when approaching FINRA arbitrations, one of which is the near-total absence of a defendant’s ability to move for dismissal of claims before trial.

FINRA’s arbitration rules state that motions to dismiss prior to trial are discouraged. Although this mindset exists at many arbitration bodies, FINRA has codified this policy and, indeed, has taken it a step further.

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Weak HR Departments May Leave Startups Vulnerable to Lawsuits

We recently had the pleasure of being interviewed by Julianne Tveten of Motherboard, for her article “HR Comes Last at Startups, and Women Pay the Price.”

The article raises some important issues for startup founders and investors.  In particular, as we discuss, a delay in establishing HR policies may inadvertently draw claims of harassment in the workplace.

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Week of April 18, 2016 on ILNToday – A Roundup!

roundupWe have QUITE the round-up for you today – twelve jurisdictions are weighing in with updates in a number of different industries and practices. So before you head out to enjoy this beautiful spring weekend, grab a cup of coffee and take a look through these top posts from this week on ILNToday!

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