Kelley Drye Ad Law Access Podcast

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 list...

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 s...

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 cha...

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 dema...

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 obl...

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 p...

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...

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 practica...

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. https://www.ad...

On Friday, 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 th...

Last week, 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. https://www.adlawaccess.com/2023/01/articles/ftc-proposes-to-regulate-virtually-every-labor-relationship-in-the...

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...

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 prot...

We have previously discussed the emphasis that the FTC has put on fake reviews throughout 2022, with proposed updates to the Endorsement Guides and a proposed rule to combat fake reviews in addition to enforcement efforts. State Attorneys General continue to also make fake reviews a top priority. Washington Attorney General Bob Ferguson closed out 2022 by filing suit against Allure Esthetic, a Sea...

The 2019 movie Yesterday is about a world without the Beatles. The 2022 lawsuit over Yesterday is about a movie without Ana de Armas. Two fans who each paid $3.99 to rent the movie based on seeing the actress in the trailer decided to sue Universal after seeing that she had been removed from the final cut of the film. https://www.adlawaccess.com/2022/12/articles/ana-de-armas-fans-move-forward-on-f...

While State Attorneys General have been clear that social media companies are generally on their radar for a variety of consumer protection concerns, TikTok has been the latest to make headlines in recent weeks. For example, multiple states have banned TikTok from government phones, and a federal government ban may soon follow, because of concerns about the Chinese government’s control over the pl...

The FTC has released two companion settlements resolving allegations that Epic Games (maker of the popular video game Fortnite) violated the Children’s Online Protection Act (COPPA) and the FTC Act, with Epic to pay $520 million in penalties and consumer redress. The cases build on existing FTC law and precedent but add new dimensions that should interest a wide array of companies subject to FTC j...

Yesterday, the FTC’s Bureau of Consumer Protection released its Health Products Compliance Guidance—a sweeping overhaul of the 1998 Guidance, Dietary Supplements: An Advertising Guide for Industry. Unlike the recently announced effort to review its Green Guides, the FTC did not seek public comment prior to issuing this update. According to an FTC blog post that accompanied its release, the new Gui...

Money-back guarantees can often be subject to detailed terms and conditions. When advertising those guarantees, clients often ask us how much has to be disclosed in an ad itself, versus how much can be disclosed on a landing page. Although there isn’t a bright line rule, a recent NAD challenge sheds light on what practices may lead to complaints. https://www.adlawaccess.com/2022/12/articles/nad-ch...

Recently, we reported that the AGs (including the DC Attorney General’s Office) are paying close attention to delivery and service fees. Sure enough, the DC AG’s office filed yet another lawsuit related to delivery fees on December 7. The District alleges that Amazon’s Flex tipping practices deceived customers from 2016-2019, stopping only after an FTC investigation ultimately resulted in a 2021 s...

Green marketing is very much in vogue, and so is suing companies over their green marketing. If you want to avoid those suits, you should generally start by looking at the FTC’s Green Guides. But a lot has changed since the Green Guides were last updated in 2012, so they don’t always provide clear answers to today’s questions. That may change, now that the FTC has started the process of updating t...

If you follow our blog, you already know that there have been a number of significant developments in the world of advertising law over the past 12 months. In this post, we highlight ten of those developments and consider what they might mean for the future. https://www.adlawaccess.com/2022/12/articles/top-advertising-law-developments-in-2022/ Contact KDW Ad Law Group DCAdvertisingAttorneys@kelley...

At the National Association of Attorneys General Capital Forum, FTC Chair Lina Khan and CFPB Director Rohit Chopra addressed state AGs and their staff on a number of pressing issues, including antitrust, enforcement authority, privacy and other priorities. And most importantly to the state AG observers, both agency heads expressed the value of state enforcement authority and partnerships. https://...

Rihanna’s Savage X Fenty is an online subscription service that sells women’s lingerie. Like many other subscription services, they have faced scrutiny over how they advertise automatic renewals. In February 2020, Tina.org sent letters to the FTC and CA district attorneys urging them to investigate the company’s marketing practices. In August 2022, the DAs filed a lawsuit against the company, and...

At the National Association of Attorneys General (NAAG) Capital Forum, consumer protection multistate investigations and enforcement actions were once again a subject of discussion. In a session specifically on the topic, NAAG Consumer Protection Committee Co-Chairs Generals Kwame Raoul of Illinois and Jonathan Skrmetti of Tennessee, as well as Susan Ellis and Jeff Hill, long time top consumer pro...