On June 17, 2020, the Southern District of New York issued an opinion and order in a complex matter between a social media gaming celebrity and a contract he signed with an esports and entertainment company. (Faze Clan, Inc., v. Tenney, 19-cv-7200 (JSR) (S.D.N.Y. July 17, 2020) (2020 WL 3318209).)

Brand promotion may be seen as encompassing (at least) three distinct but overlapping modes:

(i)  Advertising for the moment—the message is meant to drive immediate sales;

(ii)  Advertising for post-sale burnishment—the message does more than sell products today, it builds

When times become tough, stressful and trying, many people react with humour.  As the world finds itself in the midst of a global medical virus, a different type of virus – a virtual virus – has taken off and continues to grow.  COVID-19.  A virus interchangeably referred to as Coronavirus. A virus which is familiar to almost all of humanity at the present time.  And a virus which has become the subject of many social media memes, jokes and other humorous online content.

But what happens when it is your business or personality that becomes the subject of such a “virtual virus”?

In February 2020, the Australian Competition and Consumer Commission (ACCC) released its compliance and enforcement policy and priorities for 2020. Amongst the ACCC’s key enforcement priorities will be a focus on misleading conduct in relation to the sale and promotion of food products, including health and nutritional claims, credence claims and country of origin claims. This enforcement priority has been driven by what ACCC Chair Rod Sims refers to as “the growing community attention to health-related issues”.