Food & Beverage Advertising to Children: Self-Regulation or Indigestion?

Earlier today, an Interagency Working Group released a report on the Federal Trade Commission’s website making sweeping recommendations relating to the marketing of food to children. The report, entitled "Interagency Working Group on Food Marketed to Children Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts Request for Comments," is the result of the U.S. Congress’ request that standards for the marketing of food products to children under the age of 18 be subject to review and recommendation by an interagency task force comprised of the FTC, the Centers for Disease Control and Prevention, the Food and Drug Administration, and the United States Department of Agriculture.

The recommendations in the Principals bifurcate foods into two categories, for determinations as to the appropriate marketing approaches and restrictions: (a) foods that are deemed to make a "meaningful contribution to a healthful diet"; and (b) foods that, given their nutritional content, should have their advertising limited.

While the proposed recommendations are referred to as "voluntary," this not only flies in the face of the inevitable pressure on advertising practices in the food and beverage industry, but—if previous government agency regulatory recommendations, guidelines or proposals are a precedent—these can also quickly become de facto standards that the regulators themselves use in enforcing "industry standards." As with so many areas currently under scrutiny by the regulators both in the United States and around the world, deference to self-regulation is a welcome trend; but if it is mere lip service, and if industries are not given a meaningful opportunity to design both self-regulatory standards, and appropriate and meaningful enforcement mechanisms, it simply ends up creating further adversarial tensions and needless contention between industry and regulators – none of which is ultimately good for consumers in terms of cost or benefit.

The Interagency Working Group has provided a very short window for public comment: comments are due by June 13, 2011, although with enough outcry, given the scope and breadth of the Principles, they might be persuaded to extend the deadline. That said, if your company is in the food and beverage industry and will be affected by any government or self-regulatory pronouncements in this arena, now is the time to engage in the dialogue – in your own right and through the various industry associations that may be submitting comments. Of course, if you need help and guidance, the Advertising Technology & Media law practice at Rimon has lawyers ready to counsel, assist and represent you.

Free Speech on the Internet – India Goes Schizophrenic

Unreasonable restraints on free speech? India? Well, you decide. According to an article published today in the Pittsburgh Post-Gazette, storm clouds are brewing over just how far the government should and can go in restricting free speech on the Internet. Indeed—just how ambiguous the regulations can be such that interpretation becomes a subjective problem, enforceable at the discretion of regulators.

Unfortunately, the new rules (referred to as “Information Technology (Intermediaries Guidelines) Rules, 2011”) stem from a 2008 amendment, widely supported by Internet service providers (I.T. Act 2008) to an Indian information technology statute first enacted in 2000. For a history of the Indian legislation, see Information Technology Act 2000 (ITA-2000).

The Amendment removed intermediary liability of Internet service providers, many of whom are represented by the Internet and Mobile Association of India, for any content created by third parties and for which the ISP played no active role in creating. While the removal of passive ISP intermediary liability is one of growing consistency in the international community, the regulations broadly empowering officials to curtail free speech on the web are not.

Growing trend, justified by security? Aberration spawned by immediate and local concerns? Abuse of power? Reasonable trade-off for protection of society? Ahh, but whose society? Where is the balance? Who decides?

Take a look at the regulations, then you decide. But if you need legal guidance or have questions about regulations that apply to the Internet—internationally, multi-nationally or domestically, in almost any part of the world—let us know. We are here to help.

Cloud Computing – Clouds Can Sometimes Be Storm Clouds

This post was written by Joe Rosenbaum and Adam Snukal.

Among others news publications, CNN Money just recently reported that’s cloud-based Web service EC2 suffered a “rare and major outage” this past Wednesday that affected several online sites it supports, including Reddit, HootSuite, Foursquare and Quora. hosts many major websites on its servers through its cloud-based service and, in total, “[t]housands of customers hitch a ride on Amazon’s cloud, renting space on its servers.” The recent outage crashed several customer sites and created glitches of varying degrees on others.

As cloud-based Web services have proliferated, the risks associated with major outages for companies dependent on cloud-based services have become a reality. This recent outage, and potentially others like it, could create reputational risk not only to the cloud providers, but also to those who use the cloud computing services of those providers for their technology infrastructure – processing, applications and data – exposing them to contractual liabilities for failure to meet promised service levels, breaches of performance representations and warranties, and even potential security and data breaches. All these and more, possible legal and contractual problems arising from the use of and reliance on cloud computing. These potential risks should be eliminated or mitigated, and while contracts cannot always guarantee operational integrity or performance, they can provide indemnities and remedies that offer a measure of protection or mitigation in many circumstances.

Rimon has been at the forefront of cloud computing legal thought-leadership and risk-mitigation strategy for our clients. Our lawyers have significant U.S., international and multinational experience in implementing strategies, such as service level agreements and risk-mitigating tools that help limit risks associated with cloud-based computing and cloud service outages. Indeed, to appreciate the risks, one need only look to one of the very first articles by Rauer Meyer, entitled When the Cloud Bursts – SLAs and Other Umbrellas, drawn from Rimon’s on-going series – one that you can view or download entirely in up-to-date form – entitled “Transcending the Cloud: A Legal Guide to the Risks and Rewards of Cloud Computing.” You can access and download a PDF of the individual article or the entire “Transcending the Cloud: A Legal Guide to the Risks and Rewards of Cloud Computing” compendium, up to date and including all of the previous chapters in one document.

Of course, feel free to contact Christopher G. Cwalina or Daniel Z. Herbst or Joe Rosenbaum or Adam Snukal (or the Rimon lawyer with whom you normally work) if you have any questions or require legal counsel or assistance. Make sure you subscribe via email or get the Legal Bytes RSS Feed so you are always in touch with our latest information.

ILO Publishes ‘Twitter Settles with FTC – Gets 20 Years’ Probation!’

On April 5, 2011, the International Law Office published a customized version of the March 14, 2011 blog on Legal Bytes, Twitter Settles with FTC – Gets 20 Years’ Probation! You can read it online or download your own copy of the ILO posting here: ILO Posts Twitter Settlement news.

Sens. Kerry & McCain Introduce Commercial Privacy Bill of Rights Act

Sens. John Kerry (D-Mass.) and John McCain (R–Ariz.) have introduced a bill in Congress to legislatively enable a statutory bill of rights for consumers with respect to commercial privacy. You can read the full text of the Commercial Privacy Bill of Rights Act of 2011 (PDF), and Rimon will have a more complete analysis for your reading enjoyment soon; but the bill clearly intends to require that as little data about an individual is collected as possible, and give individuals a right to know how their information is being used. At first reading, the bill does not provide a private right of action, but does contemplate a self-regulatory program, perhaps a nod to the industry initiative that is highlighted in a recent Legal Bytes posting “OBA Self-Regulatory Initiative Gets Boost from Yahoo! & Google.” You can search for privacy, behavioral advertising and/or self-regulatory on our site and you will find more about this on the Legal Bytes blog.

It may be too early to tell just how much faith Congress has in the industry initiative. That said, it would seem somewhat foolish – given that the FTC and many Congressional leaders have argued for and applauded industry self-regulatory measures – not to afford an industry-sponsored, dynamic, self-regulatory program, a chance to work. As we’ve seen so many times before, along with the technology, consumers’ expectations of privacy, their tastes, commercial needs and sensitivities often change rapidly.

As always, if you need guidance for your advertising and marketing efforts, or privacy and data-protection counsel from lawyers who have experience and resources aligned to deal with these issues every day, feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

Italian Courts Order Yahoo! Italia To Keep the Links Missing

I picked up an interesting article published today in the International Law Office, and since the article is listed in the category of Information Technology, I thought some Legal Bytes readers with international interests and activities that are "content," "search" or "link" related might not see it.

The article summarizes a case in which Yahoo! Italia was held responsible for failing to remove links to infringing versions of a motion picture – thus, in the court’s view, resulting in contributory liability. What is also of interest is that the Italian court ordered Yahoo! in Italy to not only remove links to websites that "served" the allegedly infringing content, but also to remove any other websites that contained links to the websites serving that content – even if those websites had other links or provided other legitimate content, features and functions. Such a decision could have far-ranging implications since it goes to the heart of the ripple effect that linking has on legitimate content-sharing. It also raises the chilling specter of restricting access to otherwise legitimate, non-infringing content, features and functions based on a finding that there is a link to infringing material.

While one can make the case that such strong enforcement helps deter and ultimately prevent infringement, the breadth of the decision and the fact that a rights-holder can simply send a notice without requiring formal "proof" of infringement, means every link to every website that connects to an offending website could potentially be forced to de-link, and arguably bears some liability for contributory infringement. Think of the connections on social media, embedded players and links on the web – Wow!

If you want to read the entire article, you can access it right here Yahoo! Italia liable for searchable content. And as always, if you need advice from a U.S. lawyer who has done work with Italian companies and legal colleagues in Italy, call me, Joseph I. ("Joe") Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

Darwin Was Right. It’s All About Biology!

I have been stupid. It’s everywhere and I couldn’t see it. I’m looking at trying to invest my hard-earned dollars and wondering about the future of mobile and social media and technology. Hmmmm, maybe I should pour some money into that sector of the economy. But how to decide – price-to-earnings ratio, market multiple, return on equity, assets, sales? Then it dawned on me. Shhhh .. . I’ll let you in on a secret I discovered. It’s biology – natural selection, evolution, survival of the fittest – Charles Darwin was right.

Think about it. Sony says "It’s in our DNA." Twitter is for the birds. Social media is in your Face(book). Think it stops there? No way. Apple – the original sin. Gone viral – my anti-virus software has been in use for years. Make a firewall to stop it from spreading. Cookies? Baked to perfection! Who gives a Hoot(suite)? Oh and if you think the Droid or Android are not part of the mix, just watch Star Wars for those artificial parts, artificial intelligence and artificial sweeteners. 

My blog has gone viral along with YouTube videos. Word of mouth marketing – even the blog conjures up images of Steve McQueen in a very old movie ("The Blob"– who remembers, raise your hands). Hear the buzz – not the sound of bees, but rather the web browsers. Firefox? How about the wireless photographic memory cards from Eye-fi? Did I mention cloud computing – is that cloud 9 or should I get off my cloud as the Rolling Stones asked me to do many years ago?

Not convinced yet? Just the other day researchers at IBM announced that they have developed a nanoparticle that has the ability to target and destroy bacteria that has otherwise proved to be resistant to antibiotics. Now I originally thought a nanoparticle was something harvested from Ork, the planet made famous by Robin Williams in the television series "Mork & Mindy." But apparently, nanoparticles are itsy bitsy particles, so small you could fit tens of thousands of them on the head of a pin.    

So all you investment advisors, financial analysts, brokers and day traders, watch out. Pick the biologically named company of choice or, better yet, start a company, and watch it evolve, grow, mature and hopefully not crash before I sell. I personally am not surprised that Jim Beam has been around since 1795! 

Federal Grand Jury Seeks To Open Pandora’s Box

Knock Knock. Who’s there? Andover. Andover who? Andover those records Pandora.

So Pandora Media, Inc., the company that brings us the popular Pandora® Internet Radio, has reportedly received a subpoena from a federal grand jury looking into the practice of information-sharing involving smart phone applications. Pandora did indicate, however, it had been advised it was not a target of the grand jury investigation, and that it believed the legal request for the production of information had been served on an "industry-wide basis" to many other smart phone application publishers. Not much else is known about either the specific subpoenas (or is the correct Latin, "subpoenae"?) or the nature or focus of the federal investigation; but guessing that it relates to the sharing of information about location-based target-marketing practices, and the disclosure of information by and among ad publishing networks, can’t be far from the target.

The Advertising Technology & Media law practice group, in conjunction with our global regulatory practice and litigators when we need them, has experience in dealing with such subpoenae (or is the correct English "subpoenas"?). Think about knowing how to respond before you get served – with a subpoena or on a platter. OK. I’m still in the April Fool’s Day spirit. What can I say?

You’ve Got to Know When to Hold ‘Em, Know When to Fold ‘Em

Since 1996, Legal Bytes has regularly published bits and bytes at the intersection of law, technology and virtually every subject and industry one can imagine. Our publication has flourished, thanks in large measure to the wonderful support I have been given by colleagues and professionals who contribute everything from technical skills, proofreading, graphic design and, of course, keeping me honest.

Just as important, you – my faithful and loyal readers – have enriched my life beyond measure. Some of you have sent in gifts – automobiles, furnished apartments, a house in Laguna Niguel, a Gulfstream IV, a small villa near Lake Como, a few Armani suits – nothing that has changed my life or been particularly monumental, but these tokens of appreciation have meant a lot to me. Special thanks to Justin Case for that fabulous two-week vacation in the Galapagos.

As you probably can guess, the material rewards for blogging pale in comparison to the intellectual stimulation, the friendships and connections I’ve made with such great people (except for you Austin Tacious). So thank you.

In case you haven’t figured it out yet, this is the last blog post for Legal Bytes. We’ve decided to go out on a winning streak, and the awards we’ve accumulated along the way speak for themselves. “Best Blog of 2009 With the Word ‘Bytes’ in Green Letters,” “Most Printed for Spare Pet Paper Liners in 2010,” and who can forget 1999 when we won the “Party Like It’s 1999 Award” from HRH Prince, who was formerly known as something but then changed his name back to Prince.

So thank you all again for being loyal readers. The end is not near, it’s here.

FIRST, download this Legal Bytes Memorial Issue [PDF] as a keepsake.

SECOND, Here is the missing link. Although I’m not sure why I always seem to find things in the last place I look, I have found the last link for you to follow.

The End

Useless But Compelling Facts – April 2011

Now most of you might not know this, but April 1 wasn’t always called "April Fool’s Day." In fact, April 1 has been an extraordinarily historical date throughout history. Consider this: on April 1, 1340, Niels Ebbesen kills Gerhard III of Holstein in his bedroom, ending the 1332-1340 interregnum in Denmark.  Bet you didn’t know that! And I’m pretty sure most of you didn’t know that on April 1, 1572, in the Eighty Years’ War—the Watergeuzen capture Brielle from the Spaniards, gaining the first foothold on land for what would become the Dutch Republic. (Most of you didn’t remember the Eighty Years’ War did you?) But seriously, in case you were wondering, on April 1, 1778, Oliver Pollock, a New Orleans businessman, created the "$" symbol. Cool, right?

So, for our April 1, 2011 Useless But Compelling Fact question, tell us what happens when you flip the switch at The End of the Internet.  If you know the answer and are the first to send it to me, you’ll win. Send your answers directly to me at