E-commerce marketing · Industry brief

The Tenth Circuit's decision in KetoNatural Pet Foods, Inc. v. Hill's Pet Nutrition, Inc. substantially undermines the informal "two-click rule" that companies have long relied upon to avoid liability for third-party marketing claims. The court held that when a company intentionally directs consumers to third-party content through hyperlinks as part of its promotional message, that linked content may be treated as the company's own commercial speech, regardless of click distance. This reasoning extends beyond competitor false advertising claims under the Lanham Act to have significant implications for FDA, FTC, and state consumer protection enforcement, as regulators increasingly examine the totality of a company's promotional ecosystem rather than isolated statements. Companies can no longer assume that outsourcing claims to third-party websites insulates them from regulatory or consumer liability, and should now evaluate hyperlinks, linked materials, and curated content with the same compliance rigor as direct claims on their own websites.

China's State Administration for Market Regulation and Ministry of Commerce published a draft amendment to China's E-Commerce Law for public comment, marking the first broad revision since the law took effect in January 2019. The draft widens the definition of e-commerce platforms to include livestreaming, short-video and social commerce businesses, making it harder for these operators to argue they merely host content. Penalties for platform responsibility violations rise significantly, with Article 82 and 83 ceilings increasing from RMB 2 million to RMB 5 million, plus new enforcement measures including business line suspension, user registration suspension, and operating license revocation. Regulators gain express investigation powers including premises entry, operator questioning, contract inspection, evidence seizure, and payment account queries. The draft extends platform duties to address sellers themselves, not only listings, and requires written contracts when platforms outsource complaint handling or verification to third parties, with joint liability provisions. The IP provisions governing platform liability for infringement remain largely unchanged in this draft, though Article 84's RMB 2 million ceiling was not increased, suggesting further IP provision changes may still be under discussion before the draft advances to the State Council and Standing Committee of the National People's Congress.

The convergence of retail media and Connected TV (CTV) is reshaping advertising strategy. Retail media is growing at over 22% with global commerce advertising projected to hit $199.6 billion in 2026, while CTV device penetration in the UK has reached 88%. Retailers are leveraging deterministic, purchase-based data combined with CTV's premium, non-skippable environments to reach households with precision targeting. This creates a flywheel effect for retail media networks, with CTV activations directing 10 to 20% additional revenue while driving shoppers back to convert on-site. In Europe, privacy-preserving data collaboration using platforms like InfoSum enables retailers and broadcasters—including partnerships between UK grocers Sainsbury's and Tesco with broadcasters ITV and Channel 4—to match audiences without raw data leaving individual owners' environments, maintaining GDPR compliance. Industry consolidation, rising performance-focused CTV adoption, and expanded use of data clean rooms for multi-touch attribution are expected to accelerate, with European CTV powered by retail data forecast to drive 6.9% ad spend growth in 2026.