As we head into 2026, here are some thoughts from the Frankfurt Kurnit Advertising Group about some of the key issues that advertisers and their advertising agencies should be thinking about.  

Subscriptions.  Jason Howell warns that the FTC, state regulators, and class action plaintiffs are aggressively challenging allegedly deceptive subscription practices. For example, in the last few months, the FTC secured a historic $2.5 billion settlement with Amazon.com regarding Prime subscription practices, a $7.5 million settlement with Chegg regarding its cancellation mechanism, and a $14 million settlement with the owners of Match.com regarding cancellation practices. And, while the FTC already has enforcement tools at the ready via the Restore Online Shopper’s Confidence Act and FTC Act, there are signs that the agency could reboot rulemaking for its now-vacated “Click to Cancel” Rule too. So what’s a brand to do as it goes into 2026? Conduct a compliance “health check” on those subscriptions, including, for example, by reviewing subscription offers, disclosures, consent mechanisms, renewal reminders, and cancel flows.  

Digital Doubles.  Brian Murphy asks, “Are the Cylons really coming this time?”  Advertisers and agencies are increasingly experimenting with AI-generated digital replicas of real people in their campaigns.  As this tech moves from novelty to norm in 2026 (and beyond), several important questions remain. What are the best practices for securing informed consent from performers?  How do you make sure your contracts comply with state laws - including those in New York and California - and the new requirements in the 2025 SAG-AFTRA Commercials Contract?  What constitutes a “reasonably specific” description of your proposed uses of a performer’s replica?  And will 2026 bring additional state laws that address the use (and misuse) of digital replicas or will Congress heed the Copyright Office’s call for a federal digital replica law?

Pricing.  The flurry of “all-in” pricing legislation and enforcement that Kate Patton saw in 2024 has continued throughout 2025, with no signs of slowing down.  The FTC’s Rule on Unfair and Deceptive Fees took effect in May, shaking up how businesses disclose prices for live-event tickets and short-term lodging.  There’s also been a surge of new state laws—like Massachusetts’ new regulations, which took effect in September and impose stringent price disclosure requirements—and many, like Colorado’s and Connecticut’s, will take effect in 2026.  State regulators have prioritized the enforcement of these laws, and class actions have aggressively targeted pricing practices as well, making your compliance with this evolving patchwork of requirements more important than ever.

E-mails.  Hannah Taylor reports that plaintiffs’ lawyers are increasingly targeting email subject lines as deceptive advertising, using state laws like Washington’s Commercial Electronic Mail Act to bring high-dollar class actions. That playbook is likely to spread in 2026 as other states and courts take notice. Businesses should respond now by treating subject lines with advertising claims as copy requiring review. Under these statutes, a single misleading subject line, multiplied across thousands of emails, can create outsized exposure.

AI Disclosures.  For me, Jeff Greenbaum, here's what's on my mind.  As advertisers expand their use of generative AI to create advertising materials, there's going to be increasing attention on when advertisers need to disclose that AI has been employed.  Until now, the key question has really been whether the use of AI is deceptive without a disclosure (for example, showing a product demonstration that isn't real).  With a new law in New York now requiring disclosure almost any time a synthetic performer is used – regardless of potential deception – advertisers are going to be needing AI-related disclosures far more often.  And that's just the beginning.  

Promotions.  According to Kelly O'Donnell, there is some good news and some bad news coming in 2026 important for marketers who conduct prize promotions or engage in cause marketing. The good news is that, beginning January 1^st, the threshold for issuing 1099s for prizes and gifts increases to $2,000 from $600. The bad news is that, Hawaii’s Charitable Fundraising Platform regulations go into effect on July 1, 2026, which will require marketers conducting certain charitable activities in Hawaii to register annually, provide annual accounting statements, make mandated disclosures, issue tax receipts (when applicable), and more. Similar to CA’s regs that went into effect in 2024, Hawaii’s regulations cover a wide range of activities, given the breadth of their definition of “charitable fundraising platform”. Although, unlike California’s regs, they do not specifically address online round-up or donate-at-checkout programs, or free actions programs, all such programs could potentially make a marketer a Charitable Fundraising Platform in Hawaii. 

Talent.  Dorian Slater Thomas notes that, in 2025, commercial talent agreements continued to evolve in response to expanding digital usage, including emerging platforms like Roblox and new features on existing platforms like Instagram collab posts, increased scrutiny of AI use, and more complex deal economics, particularly where content involves a talent-owned brand or product. Brands and agencies faced increased pressure to clearly define permitted uses, content deliverables, and AI-related protections, while also managing tight timelines and layered approvals processes. They also had to adapt to changes in the 2025 SAG-AFTRA Commercials Contract, including new AI protections and higher P&H contribution rates. One emerging approach has been increased use of the SAG-AFTRA Influencer Agreement when SAG member talent is creating branded content. Expect to see more created approaches implemented in the year ahead. As always, careful deal negotiation, thoughtful structuring, and early legal involvement remain essential to balancing creative ambition, cost effectiveness, and legal risk in talent engagements.

Music.  Jordyn Milewski asks, "Using music on social media?"  Be careful!  This year, brands have continued to be the subject of litigation — from both labels and publishers — based on infringing uses of copyrighted tracks that they did not have appropriate rights to. These lawsuits have focused not only on the brands’ usage, but also on their influencers’ usage as well. Given the complicated web of usage terms (and the fact that usage does not necessarily equal permission!) we expect both purposeful and accidental use of music to continue to be a hot button issue in the coming year. 

AI and Suppliers.  Matt Vittone advises that AI provisions in supplier contracts should be “operational, not aspirational.”  If your agreement with a supplier of creative services includes AI provisions or exhibits, make sure the terms accurately track the process for how the services are performed and the deliverables are created.  Many agreements now include high-level AI requirements and restrictions but fail to address practical questions raised repeatedly this year, such as who can use AI, for what purposes, with what tools, and at whose risk.  The parties should be practical and realistic when mutually aligning on how AI can be leveraged and any guardrails on the use of AI, allowing flexibility to accommodate the rapidly-evolving ways in which advertising is now being created.  Agreements with suppliers should clearly allocate responsibility for matters such as IP ownership and infringement, rights clearance, copy review, and ensuring proper disclosures compliant with applicable law, particularly in production workflows.

Data.  Daniel Goldberg warns that any business that licenses, enriches, or sells personal data obtained outside a direct consumer relationship should reassess its data broker exposure. In 2026, California will impose expanded data broker requirements, including maintaining an active registration account, logging in at least every 45 days, and deleting personal data for consumers who have opted out. With regulators actively enforcing these laws and penalties increasing, data broker compliance presents real risk in 2026.

Top-Level Domains.  Kim Maynard advises that, in April 2026, ICANN will allow interested parties to register new generic top-level domains, or gtlds.  The application window is expected to close mid-year, and will be followed by a period during which brand owners can object to registration of their .brand.  With no third round scheduled (and more than a decade since the last round), brands are wise to spend a little time in early 2026 evaluating whether to register their .brands or another extension.  ICANN’s full guidebook is available here.

Privacy.  Andrew Folks reports that privacy compliance goes well beyond posting a privacy policy. In 2026, regulators and plaintiffs’ lawyers will continue to focus on technical implementations, data flows, and vendor contracting, not just disclosures. As in 2025, enforcement risk will largely stem from misconfigurations, missing or ineffective consumer rights mechanisms, and contract failures, making active system and vendor audits critical.

Web Tracking.  Caren Decter says that, in 2026, we’re expecting the flood of litigation related to web tracking technology to persist. We continue to see new iterations of these claims—e.g., that the use of AI-powered customer service agents “eavesdrop” on communications without consent. California lawmakers are considering Senate Bill 690, which could stem this tide. But even if it passes, it will likely not take effect until 2026 and will not apply retroactively. Until then, the plaintiffs’ bar will continue to pursue mass arbitrations and class actions asserting these claims. It’s more important than ever to revisit the dispute resolution provisions in your online Terms of Service to make sure you’re adequately protected!

NAD.  And, finally, according to Terri Seligman, NAD is, and will continue to be, a critical player in the advertising ecosystem, perhaps now more than ever given the current regulatory climate. As one can discern from the posts, NAD has had a lot to say about: (1) influencers: not only did NAD announce its plans to develop a beauty influencer training and certification program, but it handled several cases involving influencer disclosures, including a few “edge” cases not specifically addressed by the FTC Endorsement Guides, like when double disclosures are necessary and whether a highly stylized and professional-looking post could intrinsically convey a material connection to a brand; (2) claims about AI and other developing technology; and (3) its own jurisdiction: suffice it to say that NAD’s has an expansive view. And now with NAD’s more formal reporting relationship with the state Attorneys General, as well as with many of the most important platforms, we can anticipate that NAD will continue to play an important role protecting truth in advertising, even when companies don’t necessarily choose to participate in self-regulation.   

We wish you all the best for a happy and healthy new year!