Kelley Drye Ad Law Access Podcast

Last week, advertising and legal professionals, experts, regulators, and business representatives convened in New York for the annual National Advertising Division (NAD) Conference to consider hot topics, share perspectives on emerging issues, and discuss best practices for navigating a dynamic regulatory landscape. This year, trending topics included endorsements and reviews (especially in light...

As we previously discussed, the Class Action Fairness Act (CAFA) requires that notice be given to state attorneys general (State AGs or AGs) about proposed class action settlements, enabling them to review the terms and raise any concerns if they believe the settlement might negatively impact their state’s residents. This creates a crucial role for State AGs in the class action settlement approval...

As we rapidly approach the November election, important legal and political questions are resurfacing at the FTC—with new criticism coming from both within the Commissioner ranks and from Congress. On Tuesday, September 17, Republican FTC Commissioner Melissa Holyoak questioned the agency’s aggressive rulemaking and enforcement positions in remarks at the National Advertising Division (NAD) confer...

Automatic renewals continue to be a big priority for state regulators. When companies work to develop strategies to comply with the growing patchwork of specific state laws in this area, they often start by looking at California, since that state has some of the most stringent requirements in the country. California has been a moving target, though, as it has imposed specific requirements in 2010,...

Last week, the Environmental Working Group (“EWG”) filed a lawsuit against Tyson Foods in DC Superior Court under the DC Consumer Protection Procedures Act (“CPPA”), accusing the country’s second-largest meat company of falsely claiming it will be net-zero by 2050 and misrepresenting its industrial beef products as ​“climate-smart.” (The first-largest meat company is already facing a lawsuit over...

As the demand for GLP-1 drugs like Ozempic and Wegovy increases with consumers eager to shed pounds, the supplement industry is weighing in. Dietary supplement companies have been considering ways to address this new demand in the marketplace and advertise supplements with ingredients that have been shown to boost GLP-1 levels as alternatives to GLP-1 injections. Consumers now have a choice to mak...

We have frequently written on AGs interest in AI. In what Texas calls the ​“first-of-its-kind healthcare generative AI” settlement, the state resolved its investigation into Pieces Technologies’ alleged misleading statements about accuracy of products deployed in major hospitals. Pieces claimed the product ​“summarizes, charts, and drafts clinical notes for your doctors and nurses…so they don’t ha...

42 state attorneys general joined forces in a bipartisan National Association of Attorneys General (NAAG) letter to Congress, backing the United States Surgeon General’s recent call for Congress to require a surgeon general’s warning label on social media platforms. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/attorneys-general-support-social-media-warning-labels Paul Singer psinger@k...

Yesterday, the Federal Trade Commission issued a staff report documenting its review of 70 publicly available income disclosure statements from a wide range of multi-level marketing (MLM) and direct selling companies highlighting the ​“common formats or methods that might affect the messages they convey to consumers.” https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/ftc-staff-report-on-ml...

On December 6, 2023, Google introduced its new Gemini AI model with a video that showcased some of its capabilities. The video demonstrated how Gemini could identify hand-drawn images, make sense of gestures, create games, make connections between objects, identify a sleight-of-hand trick, and perform other impressive tasks. Most people who watched the video were left in awe, but some that dug a l...

In 2021, Earth Island Institute filed a lawsuit against Coca-Cola, alleging that the company’s campaign to promote its sustainability efforts and goals amounted to greenwashing. A year later, the DC Superior Court dismissed the case holding, in part, that because statements about aspirational goals cannot be proven true or false, they cannot create a valid claim under the DC Consumer Protection Pr...

Junk fees have made, and continue to make, state attorney general headlines with recent actions by Maryland and Rhode Island relating to consumer transportation. The rubber met the road when Maryland Attorney General Anthony Brown brought charges against a car dealership and its owners, and Rhode Island Attorney General Peter Neronha filed a lawsuit against a parking management company. https://ww...

LegalZoom makes various #1 claims, including that it is the “#1 choice for online small business formation,” that it is “#1 rated by small businesses,” and that is ​“voted #1 by small businesses.” ZenBusiness challenged these claims in the same case we wrote about yesterday. In some industries, companies can look to empirical third-party data (such as sales data) to support these types of claims....

LegalZoom has a box on its website with the title ​“As Seen In” followed by the logos of five publications that have featured its services. In an NAD challenge, ZenBusiness argued that because LegalZoom has an affiliate relationship with some of those publications, it needs to disclose its connections to them in order to comply with the FTC’s Endorsement Guides. LegalZoom argued that mere press me...

Yesterday, the Federal Trade Commission announced its final rule addressing consumer reviews and testimonials. With this rule, the Commission takes aim at ​“fake” reviews and testimonials by prohibiting their sale or purchase and allows the agency to seek civil penalties against ​“knowing” violators. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/ftc-finalizes-rule-on-fake-reviews Gonza...

On August 7, 2024, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking and Notice of Inquiry related to the use of artificial intelligence in outbound calls and texts. Among the proposed rules are a definition of an ​“AI-generated call” and disclosure requirements for placing such calls. This item is the latest in a series of actions taken by the FCC this year under...

If you’ve watched the news recently, it’s fairly safe to predict that two things happened. First, you probably watched an announcer recount disturbing news about the current political climate. Second, following that segment, you probably watched a celebrity recount the benefits of using CarShield. (If your experience is different than mine, please let me know, so that I can change my viewing habit...

In June, we summarized a number of new and pending laws specifically designed to regulate how companies display prices and fees. Although it’s important for companies to focus on those, we also noted that even in states without specific laws on point, enforcers could still rely on laws that more generally outlaw deceptive and unfair acts and practices to challenge how companies display their price...

“Up to” claims can be difficult to substantiate, in part, because the standard for substantiating those claims isn’t always clear. Over the years, the FTC, NAD, and courts have articulated different standards that are hard to reconcile with each other. For example, last month, we posted about a decision in which a three-judge panel with the Ninth Circuit determined that an ​“up to” claim reflected...

Cameo is a platform where people can pay celebrities to record videos with scripted personal messages. Jimmy Kimmel recently used the platform to see if he could get George Santos to say silly things and then Kimmel aired those videos on his late night show. Santos later sued Kimmel, accusing him of copyright infringement, and the two are battling that out in court. But today, it’s Cameo that find...

The FTC is focused on ensuring that consumers have options when it comes to repairing products. Two years ago, we summarized an FTC workshop, report, Policy Statement, and three settlements on this issue. Last week, the FTC announced that they had sent warning letters to eight companies, raising concerns about whether their warranty practices were unlawfully hindering consumers’ right to repair th...

In 2015, plaintiffs filed a lawsuit against Ashley Madison, alleging that the company had surreptitiously employed an ​“army of fembots” to lure unsuspecting men into cheating on their spouses. (You can read our coverage of that case and related warnings here.) Not satisfied with having broken up countless homes, the bots are back, and this time they’re trying to lure people away from their money....

On July 23, 2024, the Federal Trade Commission (FTC) announced that it had voted unanimously to initiate a new study focused on how companies may be leveraging consumer purchasing behaviors to personalize pricing for consumers. Using its authority under 6(b) of the FTC Act, which empowers the FTC to study specific industries or business practices, the Commission issued orders to eight companies th...

Two men – we’ll call them Mario and Alin – purchased Blue Ice Vodka based, in part, on social media posts in which various influencers suggested that the vodka was a ​“healthy product” that can help with personal fitness and weight management. ​“After conducting some research,” both men discovered that Blue Ice Vodka ​“does not have any health benefits.” They also discovered that the influencers w...

Last week, the FTC released an updated version of its Complying with the Made in USA Standard business guide. The heart of the guidance remains the same: if you expressly or implicitly state that a product is Made in the USA without any qualification, the product must be ​“all or virtually all” made in the USA. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/ftc-updates-made-in-the-usa-g...