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FTC Blankets Companies With Warning
Letters Over Endorsements and Reviews
The FTC sent warning letters to more than 700
companies recommending that recipients review their practices
related to endorsements and reviews to ensure that those practices
comply with the law. The warning letters are explicitly meant to
serve as a predicate for what could be a sweep of civil penalty
investigations of advertisers. In the Commission's announcement
of the warning letters, it emphasized that, in the Commission's
view, the blanket warning letter to over 700 companies in nearly
every industrial sector "puts those businesses on notice that
deceptive practices in the future could result in penalties of up
to $43,792 per violation."
CPRA Update: California Legislature Makes
Technical Changes to CPRA
Last week, California's Governor Gavin Newsom signed into
law AB 694, which makes a few technical
changes to the California Privacy Rights Act (CPRA). The relevant
changes to the CPRA are summarized below.
As defined in the CPRA, "personal information" does not
include publicly available information or lawfully obtained,
truthful information that is a matter of public concern. The bill
modifies the definition of "publicly available" by
removing the apparently superfluous language "or by the
consumer."
Cracks in the Privacy Wall Between Kids
and Teens: Is Teen Privacy Legislation on the
Horizon?
Since Congress enacted the Children's Online Privacy Protection
Act (COPPA) in 1998, the regulatory wall between kids and teens has
been a remarkably durable one. During all this time, COPPA, the
primary U.S. law protecting kids' privacy, has protected
children under 13 but hasn't provided any protections for
teens. While California's privacy law grants some rights to
teens under 16, these protections are narrow (opt-in for data
sharing) and only apply within that state. This means that teens
are generally treated like adults for purposes of privacy in the
U.S.
It's not exactly clear why COPPA's age 13 cut-off was chosen the
first place. First year of teen-hood? Bar Mitzvah age? The age when
children become too independent and tech-savvy to let their parents
control their media? (Ahem – that happened at age six in my
house.) Whatever the reasons for the original choice, age 13 has
stuck, even as concerns about teens' privacy and use of social
media have grown, and Senator Markey and others have repeatedly
proposed extending privacy protections to teens.
California Imposes New Restrictions on
Recyclability Claims
Last week, California's Governor signed a law that will likely
impose significant limitations on companies' abilities to make
recyclability claims or use the popular "chasing arrows"
symbol in California.
The law states that using a "chasing arrows symbol, a chasing
arrows symbol surrounding a resin identification code, orRecycling
Symbol any other symbol or statement" on a product or package
to indicate that it is recyclable, "or otherwise directing the
consumer to recycle the product or packaging" is deceptive or
misleading, unless the product or package is considered recyclable
pursuant to specific criteria to be developed by the state's
Department of Resources Recycling and Recovery.
Pushing the Boundaries of Existing
Authority: Section 19 Post-AMG Capital
Management
The Commission, making good on promises to creatively explore all
of its options for enforcement, announced by a 3-2 vote that it had
reached a settlement pursuant to Section 19 of the FTC Act with
Resident Home LLC and its owner Ran Reske. At issue were allegedly
false claims that the company's imported mattresses are made
from materials fully manufactured in the United States. As part of
the settlement, Resident Home and Reske agreed to pay
$753,000.
Hope Emerges at Senate Data Security
Hearing – But Will Congress Grab the Brass
Ring?
On October 6, 2021, the Senate Commerce Committee conducted its
second in a series of hearings dedicated to consumer privacy and
data, this time addressing Data Security. Similar to last
week's privacy hearing, the witnesses and Senators
appeared to agree that federal data security standards –
whether as part of privacy legislation or on their own – are
urgently needed. If there were to be consensus around legislative
principles, the hearing provides clues about what a compromise
might look like.
FTC Threatens 70 Colleges with Civil
Penalties in Attempt to Resurrect Penalty Offense
Authority
Making good on promises to creatively explore all of its options
for enforcement, the FTC yesterday notified 70 for-profit higher educational
institutions that it intends to use its long dormant Penalty
Offense Authority to obtain civil penalties when institutions make
misrepresentations about their programs and job and earnings
prospects. The move closely follows recommendations proposed in a
paper authored by Commissioner Rohit Chopra and Bureau of Consumer
Protection Director Sam Levine, which we previously
discussed here.
Soltani Appointed as Inaugural California
Privacy Protection Agency Executive Director
During last month's California Privacy Protection Agency Board
(CPPA) meeting, the only substantive agenda item, addressed in closed session,
was a discussion of two key appointments: the first Executive
Director and a Chief Privacy Auditor, as required by CPRA's 1798.199.30. On October 4,
2021, the five-person CPPA board announced that they appointed
Ashkan Soltani to the Executive Director position. Soltani brings
to the table a variety of privacy experiences as a former FTC Chief
Technologist, a Senior Advisor to the U.S. Chief of Technology
Officer in the White House Office of Science and Technology Policy
for the Obama Administration, and one of the architects behind the
CCPA and CPRA.
Food Industry Litigation and Regulatory
Highlights, July – September 2021
If the summer slide and the start of school kept you too busy to
follow what's going on in the food scene, we hear you! Catch up
on key developments below in this issue of our Food Industry Litigation and Regulatory
Highlights.
NAD Decision Addresses Sustainability
Claims
Last week, we posted about an NAD case involving green
claims that Georgia-Pacific made for its Quilted Northern Ultra
Soft & Strong Bathroom Tissue. In that post, we examined issues
related to how a company substantiates claims about its present
achievements and future goals. Today, we'll look at the same
case, but focus on issues related to "sustainability"
claims (and some broader principles that apply outside the
"green" context).
FTC Chair Khan's Vision for Privacy
– and Some Dissents
Last week, we wrote about FTC Chair Khan's memo describing her plans to transform
the FTC's approach to its work. This week, she followed up with
a no-less-ambitious statement laying out her vision for data
privacy and security, which she appended to an agency Report to
Congress on Privacy and Security ("report"). Together,
these documents outline a remarkably far-reaching plan to tackle
today's data privacy and security challenges. As noted in the
dissents, however, some of the stated goals may exceed the bounds
of the FTC's current legal authority.
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