Welcome back to Ad Law News and Views.
Be sure to register for our upcoming events, Privacy, Health and Pixels - What You Need to Know Now and the next installment in our State AG Consumer Protection Webinar Series: Connecticut Attorney General's Office - Privacy Enforcement and the Connecticut Data Privacy Act.
See below for more information on topics, dates, and
registration details.
UPCOMING EVENTS
Wednesday, April 19, 2023 at 12:00 pm ET
Privacy, Health, and Pixels – What You Need
to Know Now
Digital advertising, analytics, and health/wellness-related personal information are very much in the news, with increased scrutiny and enforcement by the Federal Trade Commission (FTC), the Department of Health and Human Services (HHS), requirements under the new state privacy laws, and a wave of lawsuits and demand letters by litigants using wiretap laws tied to third-party pixel tracking.
Please join us for this timely webinar discussion about these recent developments, and what they might mean for business practices going forward (even outside the health space). Our roundtable discussion will include Kelley Drye's Privacy & Information Security chair Alysa Hutnik, Advertising and Marketing Law practice chair Laura VanDruff, and Privacy Litigation partner Lauri Mazzuchetti.
Topics to be discussed include:
- Relevant FTC and HHS enforcement and business guidance
- Applicable state privacy law requirements and considerations
- An update on third-party pixel litigation
- How these developments affect business practices going forward
Register Here
Tuesday, April 25, 2023 at 3:00 pm ET
Connecticut Attorney General's Office –
Privacy Enforcement and the Connecticut Data Privacy
Act
Guest Speakers:
- Attorney General William Tong
- Michele Lucan, Deputy Associate Attorney General and Chief of the Privacy Section
Please join us for a webinar featuring special guest speakers Attorney General William Tong and Michele Lucan, Deputy Associate Attorney General and Chief of the Privacy Section, as they join Kelley Drye State Attorneys General practice Co-Chair Paul Singer, Special Counsel Abby Stempson, and Senior Associate Beth Chun for discussion and practical information on the Connecticut Attorney General's Office and its state consumer protection laws, as well as an overview of Connecticut's recently enacted Data Privacy Act and how businesses can prepare for the law to go into effect on July 1. Attorney General Tong and Ms. Lucan will also provide an overview of Connecticut's leadership in national privacy and data breach enforcement matters.
Register Here
Upcoming webinar in the series:
Thursday, May 4, 2023 at 4:00 pm ET
Nebraska Attorney General's Office – Topic to be
Announced
Guest Speakers:
- Attorney General Mike Hilgers
- Phil Carlson, Consumer Protection Division Chief
More Information available soon on the Kelley Drye website.
IN THE NEWS AND LATEST UPDATES
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Resource Center here.
State AGs and their Role in Class Actions
While it may be common knowledge for many that state attorneys
general (State AGs) bring enforcement actions under state consumer
protection laws, it is likely less well-known that the State AGs
also serve a role under the Class Action Fairness Act (CAFA). State
AGs typically receive notice through CAFA as "appropriate
state officials" if the settlement proposed includes class
members in their state.
Mars Sues Agency Over Breach of Exclusivity Provisions
Negotiating exclusivity provisions in agency agreements can
often be difficult. Companies want to broadly prevent agencies from
working for competitors, while agencies are reluctant to cut off
other sources of work. In most cases, though, once the parties have
settled on the terms, the relationship moves forward and any
disputes are resolved amicably behind the scenes. A recent lawsuit
filed by Mars Wrigley against a promotions agency demonstrates
that's not always the case, though.
Consumer Redress Amount Doesn't Add Up
Back in October of 2021, the FTC announced a
settlement with Resident Home, LLC and its CEO, Ran Reske, for
deceptively advertising its DreamCloud brand mattresses as being
made with 100% USA-made materials. The administrative settlement
included $753,300 in monetary redress pursuant to Section 19 of the
FTC Act. Despite agreeing that Resident Home had violated the law,
then-Commissioners Phillips and Wilson dissented to the settlement on the grounds
that the monetary relief exceeded the Commission's authority.
[Full disclosure: the author worked as an Attorney Advisor for
Commissioner Phillips from February 2021-October 2022.]
State AGs and Consumer Protection: What We Learned from ... Ohio
Our State AG webinar series continues, this time with Ohio
Attorney General Dave Yost and Chief of the Consumer Protection
Section Melissa Wright. During our webinar, the Ohio AG's
office highlighted its consumer protection work as it relates to
veterans and its Robocall Enforcement Unit. In case you missed it,
here is a recording of the webinar. We have
also recapped what we learned below.
Is Time Really Up for TikTok? – Details from the House Committee Hearing with TikTok CEO Shou Zi Chew
Last week, in its most high-profile effort yet to focus
attention on data privacy and security, the House Committee on
Energy & Commerce held a hearing with TikTok's CEO Shou Zi Chew. The
full-Committee hearing was high drama, with sharp statements and
accusations about TikTok's connections to the Chinese
government, wide attendance by Committee members, and extensive
press coverage during the hearing and afterwards. Some members
(notably Chairwoman Cathy McMorris Rodgers) called for TikTok to be
banned from the U.S., while others asked pointed questions without
committing to support a ban. Members also used the opportunity to
push for federal privacy legislation (and specifically the
bipartisan ADPPA), which they said would help to address the
dangers posed by Big Tech companies like TikTok.
Best Guesses for "Best" Claims
If you want to advertise that something is the "best,"
do you need substantiation? Or can you rely on a puffery argument?
Although the answer depends on context, one paragraph in a recent
NAD decision seems to conflict with longstanding precedent.
Thank you, Commissioner Wilson
As we count down the last days of March, we mark the end of
Christine Wilson's tenure at the Federal Trade Commission. Set
to resign March 31, Commissioner Wilson will have served four and a
half years at the FTC – a little longer than a single
presidential term. What many probably don't know, however, is
that she had prepared for this job her entire professional
life.
State AGs to Businesses: Protect your Customers from Criminal Activity
This week, 22 State AGs led by Wisconsin, sent Hyundai and Kia a
letter criticizing the companies' lack of
anti-theft immobilizers and use of a customer service campaign
instead of a recall to address the problem. The letter blames the
car makers for "lack of responsibility for the crisis" of
car thefts with "alarmingly high rates of thefts" saying
they are harming consumers and affecting public safety. Vehicle
owners, the letter states, may be unable to insure their
automobiles as insurance companies State Farm and Progressive have
announced they have denied policies. The companies made the choice
not to follow suit regarding industry practice to include the
anti-theft devices as standard in the US, yet included the
immobilizers in Canada and Europe. (It should be noted that Canada and EU transportation agencies appear to require
these by law, and NHTSA does not).
FTC Proposes Massive Expansion of Negative Option Rule; Would Provide Redress and Civil Penalty Authority for Deceptive Practices Unrelated to the Negative Option Transaction
If you're offering any products or services involving a
negative option or automatic renewal plan, pay close attention to
the FTC's announcement today of a proposed rule that would drastically alter
requirements for negative option disclosures while simultaneously
granting the agency authority to seek redress and civil penalties
for misrepresentations unrelated to the negative option transaction
itself, such as claims related to underlying products, features,
and services. Among other things, the rule as proposed would
require that cancellation be "at least as easy to use as the
method the consumer used to initiate the Negative Option
Feature," and that companies obtain consent before trying to
"save" a cancellation attempt and provide annual
reminders for services that do not involve the physical delivery of
goods.
NARB Recommends Better Distinction Between Current Achievements and Future Goals
Last year, we wrote about a challenge that NAD had initiated
against various green claims made by the American Beverage
Association (or "ABA"). NAD found that several of
ABA's claims – including claims that "our bottles
are made to be remade" and "we're carefully designing
our bottles to be 100% recyclable" – were substantiated,
but had concerns with others. ABA appealed the decision. Last week,
NARB issued its own decision, siding with NAD. Here are some
highlights.
NAD Explores When Companies can be Responsible for Third-Party Reviews
If a third-party writes a good review of your product –
or, even better, rates it as one of the best – can you link
to that review? A new NAD decisions suggests that the answer may
not be as easy as people think.
State Attorney General Civil Investigative Demands: Take Them Seriously
As we have discussed, most consumer protection laws give attorneys general broad authority to perform pre-litigation discovery through investigative subpoenas, often termed "civil investigative demands" (CIDs). Many attorneys general can also require sworn statements and answers to interrogatories pursuant to this statutory authority. Businesses should be aware (and beware) that failure to comply with a CID, in whole or in part, can have serious consequences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
