Advertising Law Tool Kit - Fourteenth Edition - 2026

Venable / 41 40 / Venable Ari N. Rothman anrothman@Venable.com Lead Generation In the evolving world of lead generation and performance-based customer acquisition, the pursuit of growth and efficiency can create legal risks—particularly for advertisers that acquire leads through third parties and those that generate them. Advertisers that harness the power of lead generation should consider the best practices listed below to mitigate legal risk. Lead generation best practices: • Understand basic advertising law. Advertising must be truthful and not misleading and must be adequately substantiated. Marketers and lead generators should understand what can make an advertising claim “deceptive,” how substantiation obligations apply, and the appropriate use of disclaimers. • Understand laws regulating communications with leads. The Telephone Consumer Protection Act, CAN‑SPAM Act, and state laws regulating telemarketing, text messaging, and commercial email (including state mini- TCPA statutes and laws, such as California Business & Professions Code Section 17529) all regulate how advertisers can communicate with leads they obtain via outbound phone calls, text messaging, and commercial email. • Recognize the risk of noncompliance. The Federal Trade Commission (FTC) continues to pursue deceptive practices by affiliate marketers and lead generators. State attorneys general are examining the roles affiliates, merchants, and/or networks play in knowingly facilitating unfair and deceptive practices. For consumer financial services, lead generation is often subject to additional federal and state statutory and regulatory frameworks governing marketing, disclosures, consent, and the use and sharing of consumer information. The consequences for noncompliance can include mandatory refunds, costly fines and civil penalties, consent orders with long-term reporting requirements, and/or outright bans from a specific practice. Likewise, private class action plaintiffs are pursuing costly money judgments for consumers nationwide, particularly in relation to telemarketing, text messaging, and email practices. Jonathan L. Pompan jlpompan@Venable.com • Stay on top of online contract formation best practices. Website and app terms and conditions act as a legally binding contract with users and can include important defenses for lead generators (e.g., arbitration agreements and class waivers). Online contracts with consumers—including the “call to action” and how consumers manifest assent—should be considered when designing lead generation campaigns. • Understand vertical-specific laws. Debt relief services, mortgage assistance relief services, mortgage companies, small-dollar lending, auto service warranties, insurance, health and beauty, education, and other industries are subject to numerous industry‑specific laws and regulations, which may include licensing or registration requirements triggered by the nature of the product, the marketing activity, or the role played in the transaction. Marketers in these verticals and anyone selling leads into these industries should understand the applicable regulatory frameworks. • Know your leads. Know whom you are buying leads from and whom you are selling them to. Understand how the leads originated and were solicited. Developing qualification programs, standard operating procedures, and audit and recordkeeping practices can help mitigate legal risks. • Comply with DNC. Calling a number on the Do Not Call Registry is generally prohibited unless an established business relationship exists. Whether such a relationship exists may require specific actions by the lead generator at the point of collection. • Be careful with upsells, cross-sells, and advance consent. These areas receive heightened regulatory and litigation attention. Know the federal and state laws and regulations governing these practices and stay up to date as they evolve. • Establish vendor contractual protections. Make certain written agreements are very clear regarding ownership, exclusivity, payment, terms, and liabilities in the event of a legal dispute or a government investigation/enforcement action. Agreements should also address compliance obligations, audit rights, cooperation requirements, and the nature of the leads and whether they meet the specific requirements for which they are purchased (prior express written consent to text, for example). • Protect and safeguard private information. Understand the promises about personal information made to consumers throughout the lead generation process and abide by those promises. • Watch endorsements and testimonials. Endorsers and marketers may be held liable for statements made by endorsers. Advise endorsers of their disclosure obligations. Monitor endorsements to ensure compliance with FTC guidance and take corrective action on an ongoing basis if needed.