5 Key Takeaways | Mad Men, Meet the Law:  Advertising Rules, Risks and Realities

 

Kilpatrick Partners Laura Miller and Ty Lord  and Hanesbrand's Harris Henderson (Vice President, Deputy General Counsel) recently spoke at the Association of Corporate Counsel (ACC) Charlotte Chapter on the topic of “Mad Men, Meet the Law:  Advertising Rules, Risks and Realities.” This presentation covered a wide range of modern advertising issues and how regulators and brands approach them.  Laura, Ty, and Harris discussed risks in company's advertising and marketing programs, while offering practical risk-mitigation strategies to keep compliant, yet competitive. 

Key takeaways from the presentation include:

1. Monitor and Document Music Rights with Influencers
• Monitor influencer content for unauthorized third-party IP and secure platform-specific clearances. 
• Ensure influencers only use pre-approved audio assets and licensed versions of tracks to avoid lawsuits, takedowns or muted content.
• Build creator-friendly usage guidelines and provide influencers with approved audio links, caption requirements, and platform best practices to reduce compliance issues.
• Document rights, including preserving screenshots of tracks contained in platform commercial libraries. 


2. Synthetic Performers and Digital Replicas
• New York's synthetic performer law requires advertisers to conspicuously disclose when AI-generated performers are used in advertisements beginning in June 2026.
• The New York Fashion Workers Act separately requires written informed consent before creating or using a model's digital replica or AI-enhanced likeness.
• Ensure agreements specify permitted platforms, territories, campaign duration, and whether synthetic performers or digital replicas can appear in future edits or derivative campaigns.
• Advertisers using AI-generated models or digital replicas must evaluate disclosure and deception risks together.


3. AI Washing
• AI washing occurs when companies exaggerate or overstate the AI capabilities of their products or services.
• The FTC's “Operation AI Comply” signaled increased scrutiny of unsupported AI claims and marketing hype.
• Advertisers should ensure that AI-related messaging aligns with actual product functionality and consumer expectations to avoid deceptive advertising allegations.
• Advertisers should maintain evidence supporting assertions such as “AI-powered,” “autonomous,” or “predictive” and coordinate with legal and technical teams on accurate descriptions.


4. Made in USA Claims
• An unqualified “Made in USA” claim requires that a product be “all or virtually all” made in the United States under FTC standards.
• Qualified claims such as “Made in USA with imported parts” or “Assembled in USA” may reduce risk when products contain foreign content.
• A March 2026 Executive Order directed the FTC to prioritize enforcement against false or unsubstantiated American-origin claims, especially in e-commerce.


5. Managing User-Generated Content
• Advertisers should obtain affirmative consent before using user-generated content, even when content is publicly posted online.
• Consent can be informal, such as direct messages requesting permission, but companies should maintain records of approvals.
• Broader commercial or off-platform use of fan content may require more detailed agreements or licenses.

For more information, please contact:

Laura Miller, lamiller@ktslaw.com
Ty Lord, tlord@ktslaw.com