Kelley Drye Ad Law Access Podcast

Last week, a coalition of 22 state AGs filed an amicus brief in support of a Federal Trade Commission (FTC) cease-and-desist order that prohibits tax software giant Intuit (the creator of TurboTax) from certain advertising practices relating to its free tax preparation software. Intuit asserts that the FTC’s decision is not supported by substantial evidence because its conduct was not deceptive. F...

As we previously reported, the California AG’s office recently provided clarification through FAQs on the California ​“hidden fee” law that amended the Consumer Legal Remedies Act, SB 478. Those FAQs articulated the position that restaurants must include all mandatory fees, including service charges and mandatory gratuity, as part of the displayed price for a product, while distinguishing delivery...

On July 29, 2024, the FTC’s revised Health Breach Notification Rule (HBNR) takes effect. The Rule requires vendors of personal health records (PHRs) and related entities not covered by HIPAA to notify individuals, the FTC, and in some cases, the media in the event of a breach of unsecured personal health data. Businesses operating a wide array of services, including health, diet, and fitness apps...

We often get questions from clients about whether they can use content they find on social media. In response, we’ll usually walk them through options to get consent, which can range from relatively informal options (such as getting consent through messages on the social media platform) to the more formal options (such as getting a signed release). Although there are different ways to approach thi...

The Attorney General Alliance (AGA) hosted its 2024 Annual Meeting this June, bringing together State AGs, staff, and industry for discussions on a number of topics important to AGs, including AI (again), nonpartisan cooperation, partnering with criminal law enforcement including in the fight against fentanyl, supporting small businesses and free enterprise, and protecting America’s youth. We prov...

In a big week for administrative law watchers, the Supreme Court issued a pair of 6-3 decisions paring back the powers of administrative agencies. In Loper Bright Enterprises v. Raimondo, the Court overruled Chevron U.S.A. v. Natural Resources Defense Council, Inc., and in Jarkesy v. S.E.C. it held that the Seventh Amendment prohibits agencies from seeking civil penalties for suits resembling acti...

In a bold move, Arkansas Attorney General Tim Griffin has filed a lawsuit against Temu's parent companies, labeling the popular online platform as a "data-theft business" rather than a mere e-commerce marketplace. Griffin's lawsuit accuses Temu, known for its extensive app downloads and millions of shipments, of egregious privacy violations. https://www.kelleydrye.com/viewpoints/blogs/ad-law-acces...

SC Johnson's recent NAD action against Native sheds light on the scrutiny terms like "simple" and "clean" face. SC Johnson questioned whether Native's "simple" ingredients truly lived up to the claim, highlighting the importance of clear messaging and substantiation. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/nad-decision-shows-simple-claims-can-be-complicated Gonzalo Mon gmon@kelle...

Businesses that rely on texting and calling to promote their products and services face an onslaught of new and significant legal and regulatory developments. To help with tracking these developments all in one place, below we summarize key telemarketing law developments and corresponding timelines to keep in mind: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/telemarketing-in-2024-a-m...

Energizer sparked controversy with its claim that AA MAX batteries are "up to 50% longer lasting than basic alkaline in demanding devices." This assertion led two Californians to purchase the batteries and subsequently file a lawsuit against Energizer. They alleged that the batteries failed to outlast competitors by 50%, including Duracell Coppertop batteries. Central to the case was how reasonabl...

Join us as we delve into the unexpected world of sponsorship agreements through the lens of competitive eating. Joey Chestnut, revered in the competitive eating community for his record-breaking feats, found himself sidelined from this year’s Nathan’s Famous Hot Dog Eating Contest. The controversy? A reported sponsorship deal with Impossible Foods, stirring debate akin to sports stars switching al...

For the past several years, state AGs have been ​“checked-in” when it comes to hidden hotel and resort fees. To date, these enforcers have largely relied on their standard unfair and deceptive trade practice authority under state consumer protection laws to combat practices like so-called drip-pricing or ​“hidden” fees. But now, some states may soon have new tools to combat potential unfair and de...

Consumer protection enforcers may be on the lookout for misleading hotel and resort rates and fees this summer travel season. This includes state attorneys general (AGs), who have announced multiple lawsuits and settlements regarding ​“hidden resort fees” in recent years. The new blog post, Resort to ​“Hidden Fees” and You May End Up with a Heartbreak Hotel, covers what major actions AGs have take...

Reckitt Benckiser advertises that its Finish Powerball Ultimate Dishwasher Tablets provide the ​“ultimate clean,” even in the ​“toughest conditions,” and even when you ​“skip the rinse.” In my house, the pre-rinse cycle runs flawlessly on dual-canine technology, but if you don’t have that technology, I can see how these claims may catch your attention. They also caught Procter & Gamble’s attention...

Glad advertises that its ForceFlex MaxStrength bags are ​“25% more durable.” More durable than what? If you follow an asterisk, you’ll learn that they are 25% more durable than Glad’s own 13-gallon ForceFlex bags. A competitor – presumably worried that consumers would think that Glad was making a comparison to its bags – brought a challenge before the NAD, questioning whether the basis of comparis...

The Biden Administration published a joint policy statement and set of principles for participating in the voluntary carbon markets (“VCMs”) on Tuesday. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/biden-administration-weighs-in-on-the-need-for-and-appropriate-use-of-carbon-credits Katie Rogers krogers@kelleydrye.com (202) 342-8455 www.kelleydrye.com/people/katie-rogers Subscribe to t...

Cannabinoids have been a popular topic of conversation for regulators as the cannabis landscape continues to evolve. Since the days of the tobacco Master Settlement Agreement and related investigations, Attorneys General (AGs) have long focused on protecting minors from health effects of both legal and illegal drugs (see, e.g., here and here). AGs are continuing to use their consumer protection po...

The Children’s Advertising Review Unit (or ​“CARU”) recently launched an investigation into the ​“Vlad and Niki” YouTube channel owned by CMG. The channel is described as a ​“global preschool phenomenon and highest rated kids channel on YouTube” that stars ​“the imaginative personalities and antics” of two kids ​“who are showcased in non-stop fun and crazy adventures.” Change a few nouns and that...

Last week, State Attorneys General (AGs) and staff convened to discuss the hot topics in consumer protection in private and public sessions during the NAAG Consumer Protection Spring Conference. The Executive Director of NAAG, Brian Kane, started off the day with a theme that would echo throughout the panels – that businesses should be mindful that their industry may be defined by ​“the least of”...

HoldOn makes trash bags that are certified by the Biodegradable Products Institute (“BPI”) and TÜV Austria as compostable in commercial and home composting settings. The company advertises that the bags are great for trash, composting, recycling and that they are more ​“sustainable” than competing bags that are resistant to biodegradation. A competitor filed an NAD challenge arguing that HoldOn ov...

This month, we posted about a lawsuit that an NBA Hall of Fame player filed against a company that allegedly used his image to sell products without his permission. Regardless of how that case turns out, it’s pretty clear you shouldn’t use a celebrity’s image in an ad without written consent. But what about cases that are less clear, such as a person in the background of a photo that your company...

“Everyone dies.” This was the first line in the California Attorney General’s 2021 complaint against the nation’s largest funeral service provider, Service Corporation International (“SCI”). Earlier this month, Attorney General Rob Bonta announced a proposed settlement with SCI, based in Texas and doing business as the Neptune Society and the Trident Society. California alleged that SCI violated t...

General Kris Mayes recently filed two new lawsuits against Amazon. The first accuses Amazon of using ​“dark patterns,” or digital design tricks, that make it difficult for consumers to cancel their Prime subscriptions. According to the lawsuit, Amazon used misleading graphics and wording and emphasized the benefits of Prime before allowing consumers to cancel their subscriptions to the service, am...

Yesterday, the CFPB released a report on rewards programs that traces the rise of such programs and warns that it views certain practices as unfair, deceptive, or abusive acts and practices ripe for investigation and enforcement. While the report addresses credit card rewards programs specifically, there are important takeaways for co-branded partners and any company offering a loyalty or rewards...

This week, the California AG’s office released a set of FAQs on California’s law addressing hidden fees. As a reminder, the law states that the following practices will be unlawful under the Consumer Legal Remedies Act (“CLRA”) starting on July 1, 2024. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/california-issues-faqs-on-hidden-fee-law Gonzalo Mon gmon@kelleydrye.com (202) 342-8576...