Welcome back to Ad Law News and Views.
2023 started out as a busy year for privacy teams
balancing legal obligations and technology requirements. Partner,
Aaron Burstein hosted our "Digital
Advertising Privacy Program Priorities and Tech Must-Knows for
2023" program, along with Ketch's Jonathan Joseph, and IAB's Tony Ficarrotta, which focused on challenging
obligations and trends relevant to digital advertising when it
comes to U.S. data privacy compliance across California (CPRA),
Virginia, Connecticut, Colorado, and Utah. Click here for a recording of the webinar.
Kelley Drye Privacy Litigation partners Lauri Mazzuchetti and Whitney Smith, and Privacy & Information
Security chair Alysa Hutnik hosted our "2023 Privacy
Litigation Trends" webinar where they examined privacy
litigation trends and steps companies can take to mitigate the risk
of being a target. A recording of this program can be found here.
Our State Attorneys General practice started 2023 with the first
installment of our State AG Consumer Protection Webinar Series.
Partner Paul Singer, Special Counsel Abby Stempson and Senior Associate Beth Chun, along with Tennessee Attorney
General's Office -- Lacey Mase, Chief Deputy Attorney General and
Jeff Hill, Executive Counsel, hosted "State Attorneys General
Consumer Protection Priorities for 2023" discussing state
consumer protection matters that will be of importance in 2023,
such as fake reviews, clear and accurate pricing, and dark
patterns.
Be sure to register for our State AG Consumer Protection Webinar
Series. See below for more information on topics, dates, and
registration details.
UPCOMING EVENT
State AG Consumer Protection Webinar Series
Join Kelley Drye's State Attorney General Ad Law Team for
the 2023 State Attorney General Webinar Series, which includes
guests from attorney general offices (AGOs) from around the
country. The first portion of each webinar will focus on the guest
AGO's state consumer protection authority including some of the
unique and varied aspects of their consumer laws, and the second
portion will be a topical discussion that will vary month to month,
being driven by the priorities of the guest AGO. Please see below
for the next few month's webinars, and if you missed the
January webinar that featured the Tennessee Attorney General's
Office, you can review the announcement and an article about the webinar. Sign up, invite a
colleague, and hear from attorney general offices from around the
country.
North Carolina Attorney General's Office – Consumer Protection Public Health Initiatives
February 28, 2023 | 3:30 PM ET | Webinar
The North Carolina Attorney General's Office is very active
in the public health space, using traditional consumer protection
laws to protect people's health and safety. Through the
leadership of Attorney General Josh Stein, a former Consumer
Protection Division Chief himself, the office has lead the country
in many public health matters such as opioids, vaping, and children's mental health. Please join us
for a webinar featuring special guest speakers from this office --
Daniel Mosteller, Deputy General Counsel and Kevin Anderson, Senior
Deputy Attorney General and Director, Consumer Protection Division,
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 North
Carolina Attorney General's Office and its state consumer
protection laws, as well as public health initiatives from the
state attorney general perspective.
What to Expect in 2023 FinTech and Financial Services Regulation
March 8, 2023 | 12:30 PM ET | Webinar
Join members of Kelley Drye's Advertising, Privacy, and
Financial Services teams for an overview of hot topics and issues
to watch for in 2023 in fintech and financial services.
Both the Consumer Financial Protection Bureau (CFPB) and the
Federal Trade Commission (FTC) have set an aggressive agenda for
2023 that could fundamentally alter the regulatory landscape
governing fintech and financial services providers. In pushing to
expand the boundaries of third-party liability, the agencies are
looking beyond traditional financial services providers to
retailers, social media and tech platforms, lead generators, data
aggregators, and others. The efforts come amidst simultaneous
challenges to the fundamental structure and authority of each
agency.
Please join us for a webinar with Partners Matt Luzadder and Donnelly McDowell and two of Kelley Drye's
newest team members with significant financial services and privacy
experience at the FTC, Partner Kate White and Special Counsel Ioana Gorecki.
The webinar will cover a host of hot topics in advertising and
privacy, including but not limited to:
- FTC and CFPB priorities and pending challenges to each agency's authority and structure
- Expanded third-party liability for service providers
- "Junk fees" and "dark patterns"
- Financial privacy and data access portability
- Discriminatory lending and credit practices
- Crypto and blockchain developments
Ohio Attorney General's Office - Topic to be Announced
March 28, 2023 | 3:00 PM ET | Webinar
Guest Speakers:
- Attorney General Dave Yost
- Melissa Wright, Chief, Consumer Protection Section
More Information available soon on the Kelley Drye website.
Connecticut Attorney General's Office – Privacy Enforcement and the Connecticut Data Privacy Act
April 25, 2023 | 3:00 PM ET | Webinar
Guest Speakers:
- Attorney General William Tong
- Michele Lucan, Deputy Associate Attorney General and Chief of the Privacy Section
More Information available soon on the Kelley Drye website.
IN THE NEWS AND LATEST UPDATES
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the Ad Law Access blog here or visit the Advertising and Privacy Law
Resource Center here.
Twitter Is The First Major Social Media Platform to Expressly Allow Cannabis Advertising
Twitter became the first social media platform to expressly
allow cannabis advertising. Read more about Twitter's U.S. ad policy here.
NAD Finds Advertiser Can't Support Aspirational Net Zero Claims
If you tell your friends about your new year's resolutions,
odds are that most of those friends won't push you for too much
detail on how you plan to achieve your goals. But if those friends
work at NAD, you might expect some pointed questions about whether
you have a solid plan, whether you've started to work on that
plan, and whether your goals are realistic. They're not going
to let you get by on good intentions alone.
Is the FTC a "Regulator"? It Sure Seems to be Moving in that Direction
For the 26+ years I served at the FTC, the agency always
described itself as a "law enforcement agency," not a
"regulator." That's because the FTC spent most of its
resources on enforcing the FTC Act and other laws passed by
Congress, not creating new regulations on its own. While it would
be an exaggeration to say that the FTC has become a regulator in
the mold of the federal banking agencies or CFPB, Chair Khan is
certainly pushing the FTC in that direction. Indeed, the
agency's rulemaking activity has dramatically increased under
her tenure.
ECOA and Beyond: Recent Updates and Developments in Discrimination Enforcement
On February 9, the FTC provided the CFPB with its annual summary of activities enforcing the
Equal Credit Opportunity Act (ECOA). The release of this summary
provides a great opportunity for a round-up and some updates on new
developments in this space over the past year.
FTC and State AGs Can Continue Joint Case Over Fake Reviews
Fake reviews continue to be a hot topic in consumer protection.
In 2022, we reported that six states and the Federal
Trade Commission filed a lawsuit against Roomster – a
platform through which people can find rooms and roommates –
along with its owners, alleging that they had "inundated the
internet with tens of thousands of fake positive reviews to bolster
their false claims that properties listed on their Roomster
platform are real, available, and verified." At the same time,
the regulators announced a settlement with an individual who allegedly
sold Roomster many of the fake reviews.
Food + Personal Care Industry Insights – January 2023
Welcome to the 2023 inaugural issue of our newsletter, where we
explore litigation and regulatory trends and developments from
around the food, dietary supplement, and personal care industries.
Like most everybody else, we've given up on our new year's
resolutions, so let's go to the food court.
State AGs and Consumer Protection: What We Learned from....Tennessee
While seventeen new state attorneys general are now sworn in and
getting settled into their offices across the country, consumer
protection continues to be the top of their agenda. Enforcement
continues to take shape in different forms including individual
actions, multistate investigations, and partnering with the Federal Trade Commission
(FTC). This year we expect states to target particularly salient
issues such as dark patterns, autorenewal concerns, and/or data
security and privacy, but those priorities will continue to evolve
through discussions at the forums of their main national
organizations.
Influencer's Long Lashes Could Raise Ad Law Issues
Mikayla Nogueira is a 24-year-old beauty influencer with over 14
million followers on TikTok. At last count, that's more than
the number of followers we have at Ad Law Access, so she must be
doing something right. (Or perhaps we're doing something wrong
by neglecting our readers' beauty needs, but that's a topic
for another day.) In any event, Mikayla recently shared a tip that
"literally just changed [her] life" and figuratively just
ignited a battle on the internet.
FTC Challenges Half-Baked "Made in USA" Claims
Instant Brands advertises that its Pyrex glass products are
"Proudly Made in USA" and as "American as Apple
Pie." For many years, it appears that Instant Brands'
claims complied with the requirements set forth in FTC's Made in
USA Labeling Rule. But when the COVID-19 pandemic hit and consumers
who were stuck at home turned to baking for solace, Instant Brands
had trouble meeting the increased demand for its products and it
had to look for options outside the country.
FCC Seeks Comments on Updates to CPNI Breach Reporting Rule
The Federal Communications Commission ("FCC" or
"Commission") is seeking comments on a Notice of Proposed Rulemaking (NPRM) to
refresh its customer proprietary network information
("CPNI") data breach reporting requirements (the
"Rule"). Adopted earlier this month by a unanimous 4-0
vote of the Commission, the NPRM solicits comments on rule
revisions that would expand the scope of notification obligations
and accelerate the timeframe to notify customers after a data
breach involving telephone call detail records and other CPNI. The
FCC cites "an increasing number of security breaches of
customer information" in the telecommunications industry in
recent years and the need to "keep pace with today's
challenges" and best practices that have emerged under other
federal and state notification standards as reasons to update the
Rule.
Regulators Continue to Focus on "Dark Patterns" in Negative Option Marketing
These days, consumers can obtain everything from newspapers to
meal kits to credit monitoring services through subscriptions. The
prevalence of these services, and the ease with which consumers can
sign up, have gotten the attention of regulators who are concerned
that some negative option marketing might confuse or trick
consumers. The CFPB, FTC, and state AGs have been particularly
vocal about practices they deem "dark patterns," and
continue to focus on the area.
The FTC's Proposal to Ban Noncompetes is on Shaky Legal Ground
By now, most of our readers have likely heard about the
FTC's proposed rule to ban noncompete clauses in employment
contracts, including from Kelley Drye's other posts on the
topic discussing the sheer breadth of the proposal and the
potential implications for employers. In this post, we
zero in on an issue that merits a lot more attention than it's
getting – namely, the serious legal and practical questions
that the FTC's proposal raises.
FTC Proposed Ban of Noncompetes: Practical Guidance For Employers
The Federal Trade Commission's ("FTC") proposed
rule banning the use of non-competes with employees and workers
could regulate nearly every employer in the nation. If a
final rule emerges from this proposal it could potentially prohibit
non-disclosure, non-solicitation, and non-recruitment agreements
and functional non-compete clauses. How can individual firms and
industry groups alike weigh in on one of the most substantial
regulatory actions facing employers right now? And what should
businesses do to prepare? Kelley Drye's Labor and Employment
practice shares practical guidance to help employers prepare for a
world without noncompetes.
Two Firsts for FTC Civil Penalty Enforcement: ROSCA for Automatic Renewals and Penalty Offense Authority for Money-Making Claims
The FTC announced what would ordinarily be an unremarkable
enforcement action against a company for unsubstantiated earnings
claims. The FTC alleges that WealthPress, an investment advice
company purporting to offer training from experts on trading
strategies, made a series of unsubstantiated earnings claims such
as "make $24,840 or more every single week," "track
the BIG money," and the opportunity may "quite literally
transform your life."
New California Law Governing Commercial Co-Ventures Now (Partly) In Effect
Consumers increasingly want to feel good about their buying
decisions and like-minded companies often look for ways to
communicate how they align with consumers through "cause
marketing" campaigns. One popular type of campaign –
commonly called a "commercial co-venture" or
"CCV" campaign – involves a for-profit company
advertising that a portion of a purchase will benefit a
charity.
Using Domestically Sourced Recycled Content? Look Beyond the Recycling Process before Claiming It's "Made in USA"
We periodically stumble across older FTC investigations that
have new relevance, and post about them as reminders. That happened
recently as we get more questions about the use of recycled content
and the desire to tout U.S.-based manufacturing. Although the
FTC's Enforcement Policy Statement and regulation regarding Made in USA claims do not
mention how to evaluate recycled content, in a 2014 FTC Staff Advisory Opinion the Staff declined to
consider the recycling process as a "new life cycle" and
disregard the origin of the jewelry returned for
recycling.
FTC Proposes to Regulate Virtually Every Labor Relationship in the United States
The Federal Trade Commission revealed what it meant when it vowed to be more than an antitrust and consumer protection agency. It announced a proposal to regulate virtually every labor and service relationship in the United States and make it more lucrative for people to quit.
CFPB Tackles Fine Print in Consumer Financial Contracts
Downloading an app, buying a product or service, or otherwise interacting with a company frequently requires consumers to consent to multi-page contracts. In a new proposed rule, the CFPB would require nonbank financial companies subject to the CFPB's supervisory jurisdiction to register any use of such form contracts if they contain terms that seek to waive or limit consumer rights and legal protections.
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