Kelley Drye Ad Law Access Podcast

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 Ma...

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...

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. Gonzalo Mon gmon@kelleydrye.com (202) 342-8576 www.kelleydrye.com/Our-People/Gonzalo-E-Mon Subscribe to the Ad Law Access blog - www.adlawaccess.com/sub...

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. https:...

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. https://www.adlawaccess.com/...

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 s...

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 i...

On February 16, 2023, the Attorneys General of Ohio and Pennsylvania announced a settlement with Ohio-based DNA Diagnostics Center (“DDC”) for a 2021 data breach which involved 2.1 million residents nationwide, including the social security numbers of over 45,000 Ohio and Pennsylvania residents. As a part of the settlement, which resolves alleged violations of Ohio and Pennsylvania consumer protec...

If Iowa Governor Kim Reynolds signs Senate File (SF) 262, the Hawkeye State will become the sixth state to adopt a comprehensive consumer privacy law. Iowa’s House and Senate have both passed Senate File 262 unanimously. If approved, SF 262 will go into effect January 1, 2025. https://www.adlawaccess.com/2023/03/articles/iowa-a-sixth-state-privacy-law/#more-11487 Aaron Burstein aburstein@kelleydry...

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, N...

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. https://www.adlawaccess.com/2023/03/articles/nad-explores-when-companies-can-be-responsible-for-third-party-reviews/ Gonzalo Mon gmon@kelleydrye.com (202) 342-8576 www.kelleydrye.com/Our-...

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...

On March 13, 2023, the FTC submitted its 2024 budget request to Congress, along with a performance plan for FY 2023-2024 and a performance report for FY 2022. While generally an aspirational document, the budget includes a few notable asks that provide clues about agency priorities in the consumer protection space.. https://www.adlawaccess.com/2023/03/articles/reading-the-tea-leaves-in-the-ftcs-20...

A recent post on the FTC’s Business Blog notes that although there may be disagreement about what “artificial intelligence” or “AI” is, those terms are being used in marketing campaigns, and the FTC worries that some advertisers “won’t be able to stop themselves from overusing and abusing them.” To help those advertisers out, the FTC’s post includes four questions that they should ask themselves....

For $9.99 per month, Pier 1 offers Pier 1 Rewards, a loyalty program that includes benefits such as a 10% discount on all purchases and free shipping and returns on eligible items. Until recently, when a consumer added an item to a cart, the company would automatically also add the Pier 1 Rewards membership to the cart (with a pre-checked box indicating acceptance) and apply the 10% discount. A co...

Our State AG webinar series continues, this time with Consumer Protection Division Director Kevin Anderson and Deputy General Counsel Daniel Mosteller of the North Carolina Attorney General’s Office (NC AGO). During our webinar, we learned about the office’s structure, consumer protection work as it relates to public health issues, and the tools they have pursuant to the consumer protection laws o...

For the second time in as many months, the Federal Trade Commission (FTC) last week announced a settlement alleging that a company’s the use and disclosure of consumers’ health information for online advertising violated the law. The BetterHelp settlement indicates that the FTC takes a broad view of what constitutes “health information,” but it raises questions about how the FTC will apply its rei...

Last week, as severe weather hit the country, price gouging laws were triggered ranging as far as California to Kentucky. And as we’ve previously reported, complying with the varied state price gouging laws can be tricky, especially where they use undefined terms like “excessive” or “exorbitant” to define price gouging. Last week the New York Attorney General announced proposed rules designed stre...

This past week, the internet lit up over whether it was okay for President Biden and the First Lady to order the same dish at the Red Hen. In this issue, we invite you to read the February highlights on clean labeling false advertising litigation, updates on green claims, thoughts on whether light beer should taste like beer, FDA’s plant-based milks draft guidance, and USDA’s enhanced authority on...

Recently, NAD released a decision in a case involving a Molson Coors ad that has received more press attention than any NAD decision in recent memory. In the ad, athletes are celebrating the completion of a difficult workout by opening a can labeled “Extremely Light Beer” and pouring the liquid over their heads while an announcer says “Light beer shouldn’t taste like water. It should taste like be...

As we’ve described here, the Senate made major strides last year on legislation to protect children’s privacy and safety online. Indeed, two bipartisan bills sailed through a Commerce Committee markup, though they didn’t ultimately make it to the floor for a Senate vote. This year, kids’ privacy is once again getting attention, beginning with a February 14 Senate Judiciary Committee hearing on the...

Twitter became the first social media platform to expressly allow cannabis advertising. https://www.adlawaccess.com/2023/02/articles/twitter-is-the-first-major-social-media-platform-to-expressly-allow-cannabis-advertising/ Kristi Wolff kwolff@kelleydrye.com (202) 342-8805 https://www.kelleydrye.com/Our-People/Kristi-L-Wolff Subscribe to the Ad Law Access blog - www.adlawaccess.com/subscribe/ Subsc...

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 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. https://www.adlawaccess.com/2023/02/articles/ecoa-and-beyond-recent-updates-and-developments-in-discrimination-enforcement/ Ioa...

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...