In this episode of "Clearly Conspicuous," consumer protection attorney Anthony DiResta covers the emerging issues driving federal and state enforcement and private litigation. He highlights six themes shaping priorities: artificial intelligence (AI) and automation, advertising and marketing practices, privacy and data security, unfair and abusive practices, escalating coordination among enforcers, and sector-specific scrutiny of financial services, health and environmental claims. Mr. DiResta explains how agencies are intensifying oversight of AI transparency and bias, influencer and native advertising disclosures, data collection and breach response, "dark patterns," hidden fees and products targeting vulnerable consumers. He then describes practical steps to help mitigate unwanted attention from the government - from AI audits and human oversight to substantiation, social media policies, incident response plans and consumer-centric design. He concludes by highlighting how important it is to build trust through first instance compliance to reduce risk and position your business to thrive in a dynamic enforcement landscape.
Podcast Transcript
Anthony DiResta: Good day, and welcome to another podcast of Clearly Conspicuous. As we've noticed in previous sessions, our goal is to make you succeed in this environment that, frankly, is very aggressive and progressive, even in the current administration, make you aware of what's going on with the state and federal consumer protection agencies, and give you practical tips for success. As always, it's a privilege to be with you today.
Today I'm going to take you on a roadmap through the emerging consumer protection issues that both federal and state agencies, as well as private plaintiffs' attorneys, are paying very close attention to. The consumer protection landscape is not static. It's dynamic. It's evolving with technology, with market behavior and with public expectations. So, if you are a company, a senior executive in a company, a general counsel, a compliance manager, even an advisor, you need to know what's coming over the horizon. And to someone who has spent decades defending investigations and working closely with regulators, I want to share the issues and themes that I believe are shaping tomorrow's enforcement priorities. So let's begin.
Artificial Intelligence and Automation
Theme one: artificial intelligence and automation. First, let's talk about AI. AI is transforming how companies market, price and deliver products and services. But it also raises unique consumer protection questions. And agencies are asking, are AI-driven algorithms misleading consumers? Are they discriminatory? Are they making promises that can't be substantiated? For example, if an AI chat bot provides product advice, is that advice truthful and not deceptive? If an algorithm offers differential pricing, is it unfairly targeting vulnerable consumers? Regulators are intensely focused on transparency, disclosure and accountability in the use of AI. This is not just theory, folks. The Federal Trade Commission (FTC) and several state attorneys general have already issued policy statements and enforcement actions in this space. Companies using AI tools should have compliance protocols in place: audits, testing, human oversight. It's an area where enforcement is only going to grow.
Marketing and Advertising
Theme two: advertising and marketing practices. The second big area is advertising and marketing. Truth in advertising is a perennial theme in consumer protection, but what's changing is the medium and the sophistication of marketing. Social media influencers, native advertising and new forms of digital targeting are under the microscope. Agencies are asking, are disclosures to consumers clear and conspicuous? Are influencer endorsements genuine? Are claims substantiated by solid evidence? For businesses, the lesson is simple: What worked five years ago may no longer be sufficient. The standard is evolving, and enforcement agencies are attuned to marketing practices that blur the line between persuasion and deception. A roadmap to compliance here means training staff, monitoring influencers and making sure your claims stand up to scrutiny. And the FTC has made very, very clear: Every business — and I say every business — is required to have a social media policy. Folks, I'll say it again: Every single business that I've worked with has been required to have a social media policy. And I've worked firsthand with the FTC in investigations and policy workshops on what those expectations are.
Privacy and Data Security
Theme three: privacy and data security. Consumer data is the lifeblood of the digital economy, but it is also one of the greatest areas of vulnerability for companies. Regulators are focusing on how personal data is collected, used, shared and protected. The Federal Trade Commission and state attorneys general are scrutinizing disclosures about data practices, security safeguards and whether consumers truly consent to how their data is being used. Plaintiffs' attorneys are also very aggressive in this space. Class actions after a data breach can be devastating to a brand, for example. Companies should be prepared not only with strong data protection measures but also with incident response plans and a strategy for transparent consumer communications. Privacy and security are not optional. They are existential issues right now.
Unfair Trade Practices and Abusive Transactions
Theme four: unfair trade practices and abusive Transactions. So now we'll think about unfair trade practices in transactions that put consumers in an unfair position. The law doesn't just prohibit deception; it prohibits conduct that isn't fair or abusive. That's a broad mandate, and yes, it's subjective. And agencies are using it to examine practices that take advantage of consumers' lack of knowledge, their leverage or choice. For example, subscription services with confusing cancellation policies, hidden fees or dark patterns in online design can trigger enforcement actions. Aggressive collection practices, burdensome contract terms or transactions that target financially vulnerable consumers are also in the spotlight. Here, the lesson is to look at your practices from the consumer's perspective. If a practice feels manipulative or exploitative, it's likely to draw scrutiny.
Emerging Areas: Financial Services, Health, Environment
Theme five: emerging areas — financial services, health and the environment. So let's not forget the emerging areas beyond technology here. Financial services, especially products aimed at consumers with limited credit options, are being examined for fairness and transparency. And health-related claims and products, particularly online, are under the microscope because of their impact on safety and well-being. And environmental or green marketing claims are rising as consumers increasingly demand sustainable practices. So agencies and private lawyers are asking, are eco-friendly claims truthful? Are financial products structured fairly? Are health claims supported by real evidence? These are all areas where proactive compliance can prevent enormous legal and reputational risk.
Enforcement Trends and the Importance of Legal Counsel
So theme six now: enforcement trends and the role of counsel. Regulators are increasingly aggressive in their investigations — and yes, even in this current administration. They coordinate across federal, state and even international borders. They use technology to analyze data, and they analyze consumer complaints, even from the Better Business Bureau. And they are quick to bring cases that set precedent. For companies, the challenge is that the government acts as the investigator, the prosecutor and the judge. That's why it's essential to work with counsel who not only know the law but also understand the culture of the staff, the expectations of the agency and the strategies to communicate effectively. And let me add this: When I was at the Federal Trade Commission, I learned there were internal, nonpublic, confidential policies and procedures for the staff to use to govern investigations. And writing white papers, engaging early with investigators, presenting a company's narrative with credibility can make all the difference. Counsel with the right touch can turn an investigation from a crisis into an opportunity for closure or even trust-building. Yes, the touch is important. It's critical for a successful outcome.
Key Takeaway
So here's the key takeaway, ladies and gentlemen. The emerging consumer protection issues are clear: artificial intelligence; advertising and marketing; privacy and data security; unfair trade practices; abusive transactions; and sector-specific concerns in finance, health and the environment. Companies that understand these themes and prepare for them will be positioned not just to avoid enforcement but to thrive in a consumer marketplace where trust is everything. What creates trust? Compliance at the first instant. Folks, I've spent my career helping companies navigate this terrain, defending investigations and guiding executives through governmental scrutiny. My goal is to share insights that help you anticipate the issues, adapt your practices and protect your reputation. Thank you for joining me today. I wish you continued success and a meaningful day.
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