Kelley Drye Ad Law Access Podcast

In a long-awaited decision with profound implications for the future of the agency, the Supreme Court held 7-2 today that the Consumer Financial Protection Bureau (CFPB) is constitutionally funded. CFPB officials can breathe a sigh of relief as a contrary decision would have called into question many longstanding enforcement, investigative, and regulatory efforts. With the Court’s decision today,...

Yesterday FTC Staff released updated Business Guidance Concerning Multi-Level Marketing that provides a detailed account of their current perspective on applicable standards governing the direct selling and multi-level marketing (MLM) industry. The new Guidance updates guidance from January 2018 (that we covered here) and lays out several principles and issues that Staff intend to consider in eval...

On April 19th, Sen. Bernie Sanders (I-Vt.), Sen. Cory Booker (D-N.J.), and Sen. Peter Welch (D-Vt.) introduced The Childhood Diabetes Reduction Act (the ​“Act”). In a press release that positions the Act as having the same urgency as Congress’s efforts to take on the tobacco industry 30 years ago, the sponsors’ stated aim is to combat growing trends in childhood diabetes and obesity. https://www.k...

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...

Website accessibility lawsuits continue to be big business for plaintiffs’ attorneys, with thousands of lawsuits filed every year. Part of the problem is the lack of clear guidance from the government in this area, given that neither the Americans with Disabilities Act nor related state laws specifically address website accessibility or what (if anything) companies need to do when they code their...

Doing good just got a little more complicated for companies that run charitable campaigns in California. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/california-publishes-new-regulations-governing-charitable-campaigns Christie Grymes Thompson cgthompson@kelleydrye.com (202) 342-8633 https://www.kelleydrye.com/people/christie-grymes-thompson Gonzalo Mon gmon@kelleydrye.com (202) 342-85...

The Princeton Review advertises its MCAT preparation courses with the following copy: ​“Score a 515+ on the MCAT or add 15 points depending on your starting score. Guaranteed or your money back.” Blueprint Test Preparation filed a challenge before the NAD arguing that The Princeton Review must be able to substantiate that its students will score 515+ or add 15 points. The Princeton Review argued t...

What trends are shaping consumer protection in 2024? From kids on social media to fake reviews and junk fees, state AGs are working across state (and partisan) lines on initiatives that promise to mold the consumer protection landscape for years to come. In this post, we reflect on our conversation with Todd Leatherman, who works at the forefront of these issues as Director of the National Associa...

Federal courts and NAD are coming to different conclusions on whether disclosures on the back of packages can effectively qualify claims that appear on the fronts of the packages. Some courts – such as courts in the Ninth Circuit – have held that disclosures on the back of a package can help to qualify a claim on the front, as long as that claim is ambiguous, as opposed to false. NAD, on the other...

Two consumers walked into supermarkets on a mission to find ​“nutritious, healthy snacks” that ​“would not likely increase [their] risk of disease” and later walked out with Fruit Bowls in Gel, Fruit Bowls in Juice, Canned Fruit in Juice, Canned Fruit in Heavy Syrup, Canned Fruit in Light Syrup, and Canned Fruit Juice. Perhaps those wouldn’t be your first choices, given that mission statement, but...

I Dig Texas and Creager Services both sell construction equipment called skid steer attachments. I Dig Texas urged customers to buy its products instead of Creager Services’ products by appealing to their sense of patriotism. I Dig Texas claimed that its products are ​“American Made” while its competitor’s products are ​“110% Made in China.” Creager Services didn’t dig those claims and filed a law...

Last week in South Carolina, AGs, staff, and members of the community gathered for the AI and Preventing Child Exploitation Seminar, presented jointly by the Attorney General Alliance (AGA) and the National Association of Attorneys General (NAAG). Sessions focused on robocalls, online platforms, youth digital wellness and mental health, and the potential benefits of AI. https://www.kelleydrye.com/...

April 16, 2024 Crème Fatale is a drag artist who is famous for her baby-doll looks and pastel-colored skin. See the picture below. I tend to go for a more natural look myself, so I can’t imagine how long it takes to apply that makeup or how long it takes to remove it, but I bet the numbers are high on both sides of the project. Luckily, Fenty Skin makes a product that makes the removal phase a lit...

The governor of Maine recently signed an amendment to the state’s telephone solicitation law that will make it mandatory for telephone solicitors to check against the Federal Communications Commission’s (FCC’s) reassigned number database ​“to verify that a consumer’s telephone number has not been reassigned prior to initiating a telephone sales call to that consumer.” Callers will also be required...

Breaded fish fillets were the latest target of an ESG class action lawsuit examining sustainable certifications, traceability claims, and broad environmental benefit claims for ConAgra’s fish fillets and similar seafood products. The Northern District of Illinois decided on a motion to dismiss that although ​“certified sustainable seafood” claims may be permissible in this case, general ​“good for...

Last week, state attorneys general (AGs) gathered to discuss Nevada Attorney General and Attorney General Alliance Chair Aaron Ford’s Initiative, focusing on consumer protection education. Attendees heard from many panels discussing topics ranging from consumer financial literacy, digital literacy, and cybersecurity, to the continued hot topic of AI. We are highlighting the fireside chat between A...

On October 25, 2023, New York enacted GBL 391-oo, which bans the sale of over-the-counter diet pills and dietary supplements intended for weight loss and muscle building to individuals under the age of 18. Covered products include diet pills and dietary supplements that are ​“labeled, marketed or otherwise represented for the purpose of achieving weight loss or muscle building.” The law requires r...

Does Hyaluronic Acid Help to Fight Signs of Aging? At Ad Law Access, we are known just as much for the naturally youthful appearance of our writers as we are known for the quality of our content, so we don’t have any personal experience in this area. But this very question prompted a new NAD decision that involves a number of areas where we do have relevant experience. https://www.kelleydrye.com/v...

The beginning of 2024 has brought with it a decided regulatory focus on telemarketing. In the past couple of months, we’ve written about several important FCC actions related to the Telephone Consumer Protection Act (TCPA), namely the adoption of a one-to-one consent requirement, a ruling that calls to consumers using AI technologies are considered ​“artificial or prerecorded” messages subject to...

Last week, we posted about an NAD decision that provides some helpful guidance for advertisers who want to use the word ​“clean” to describe their products. One day later, a New York federal court issued a decision in another case involving the same word. Luckily, the court’s analysis is generally consistent with NAD’s analysis and bolsters the tips we outlined last week. https://www.kelleydrye.co...

U.S. privacy developments are moving quickly, but health data privacy is racing forward. Companies that come into contact with consumers’ health data need to track and respond to a variety of developments. Most notably, these include Washington’s My Health My Data (MHMD) Act, a similar law in Nevada, ​“sensitive data” and ​“sensitive personal information” requirements under comprehensive state pri...

Over the past two years, we have seen FTC staff express its opinions on the state of the law in multiple ways. In December 2022, for example, staff issued its Health Products Compliance Guidance, intended to supersede the FTC’s 1998 guidance, ​“Dietary Supplements: An Advertising Guide for Industry,” as we covered here. We also have seen a slew of proposed guides and rules on endorsements and test...

As we have previously reported, state attorneys general (AGs) have great interest in artificial intelligence (AI) and we do not see this stopping anytime soon. This time, our focus is on a bipartisan legislative proposal from Washington Attorney General Bob Ferguson to create an AI task force, which the Washington State Legislature passed (Senate Bill 5838) and now awaits the governor’s signature....

Smile Prep operates a website that provides reviews of clear aligners (or ​“invisible braces”) based on an ​“extensive five-point analysis.” Because Smile Prep’s sole source of revenue consists of commissions from some of the companies it reviews, Smile Direct Club (or ​“SDC”) filed an NAD challenge suggesting that the company ​“slants its rankings and reviews to favor those companies that make pa...

Last week, NAD announced a decision involving a challenge that a competitor brought against Wonderbelly involving (among other things) an influencer campaign. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/nad-decision-addresses-influencer-disclosures Gonzalo Mon gmon@kelleydrye.com (202) 342-8576 www.kelleydrye.com/people/gonzalo-e-mon Subscribe to the Ad Law Access blog - www.kelleydr...