Kelley Drye Ad Law Access Podcast

On December 12, the FTC issued the Combating Auto Retail Scams Rule (“CARS Rule”) which will broadly regulate sales activities of motor vehicle dealers. Authorized by Congress through the Dodd-Frank Act and promulgated under the Administrative Procedure Act (as opposed to the FTC’s more cumbersome Magnusson-Moss authority), the final rule will take effect on July 30, 2024. https://www.kelleydrye.c...

Last year, a plaintiff filed a class action lawsuit against H&M, arguing that the retailer misled consumers into thinking that its Conscious Choice collection of clothing was ​“environmentally friendly” and ​“sustainable.” This May, a federal court in Missouri dismissed the case, noting that the plaintiff had mischaracterized H&M’s claims and that the retailer had qualified the claims such that re...

While the California Privacy Protection Agency (CPPA) Board’s attention during its December 8 public meeting was mainly focused on preliminary draft regulations on automated decisionmaking technology (ADMT), risk assessments, and cybersecurity audits, the Board also decided to begin a formal process to revise its existing regulations. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/cppa-...

Royal Oak sells Super Size charcoal briquets that are 50% bigger than the briquets sold by certain competitors. Royal Oak advertises that ​“a bigger briquet is a better briquet” and that the briquets provide ​“the best grilling experience.” Kingsford Products Company challenged these (and other) claims and demanded that Royal Oak provide substantiation. https://www.kelleydrye.com/viewpoints/blogs/...

This week, Massachusetts Attorney General Andrea Joy Campbell’s office touted the release of draft regulations to prohibit hidden ​“junk fees,” enhance transparency in various transactions, and make it easy for consumers to cancel subscriptions. The office highlights that junk fees can make it difficult for consumers to comparison shop, harm honest business, and have a disproportionate impact on m...

Earlier this year, Coca-Cola reformulated its Powerade beverage to include more electrolytes. In some ads, it boasted that the beverage now contained ​“50% more electrolytes vs. Gatorade Thirst Quencher.” One social media post featured a headline ​“Powerade vs. Gatorade Thirst Quencher” above a side-by-side comparison of the electrolyte and vitamin content of the two beverages. The caption read: ​...

Earlier this year, we examined how changes to the FTC’s Endorsement Guides might affect influencer campaigns and suggested that companies may want to monitor FTC actions in this area to see what types of conduct grab the FTC’s attention. Yesterday, we got some initial clues when the FTC announced that it had sent warning letters to two trade associations – the American Beverage Association and The...

We return to NAAG’s 2023 Consumer Protection Fall Conference for ​“Advertising Psychology and Law Primer.” While it lived up to its name covering many basic advertising law concepts, the panel also covered specific perspectives from California on junk fees and other advertising principles that are valuable tips to help stay off their radar. This panel was moderated by Nick Akers, Senior Assistant...

On November 7, the National Association of Attorneys General (NAAG) 2023 Consumer Protection Fall Conference held its public day with a number of substantive and interesting discussions about the current state of consumer protection enforcement by the FTC and, of course, state AGs. We will be bringing you a series about the conference panels, each of which discusses a hot topic of enforcement for...

This week, the FTC and Florida AG announced a settlement with Chargebacks911, a chargeback mitigation company that touted its ability to help companies respond to and reverse consumer credit card disputes. The FTC and Florida AG sued the company in April 2023, alleging that Chargebacks911 used deceptive techniques to contest chargebacks and lower clients’ chargeback rates. https://www.kelleydrye.c...

Yesterday, the Consumer Financial Protection Bureau (CFPB) released a notice of proposed rulemaking that would allow the agency to supervise and conduct examinations of certain non-bank providers of digital wallets and payment apps. The move is intended to address perceived ​“regulatory arbitrage by ensuring large technology firms and other nonbank payments companies are subjected to appropriate o...

Reviews matter. In a survey conducted by Yelp, 83% of consumers who read reviews say they trust online reviews about local businesses. However, fake reviews may mislead consumers. Recently, there was media attention around a one-night-only restaurant in New York City that arose from fake reviews. The idea for a restaurant spawned from a joke. A group of friends had renamed (on Google Maps) the hou...

The FTC yesterday filed a complaint and stipulated order against Bridge, It (dba ​“Brigit”), a fintech company that operates a personal finance mobile application that advertises cash advances to consumers. According to the complaint, Brigit targeted low income consumers with offers for short-term cash advances of ​“up to $250” if they enrolled in a $9.99 per month membership program. The FTC alle...

NAD recently issued a decision in a challenge that Bath & Body Works (or ​“B&BW”) brought against Goose Creek that touches upon a number of common issues advertisers face. Although the decision covers a lot of ground – B&BW challenged a combination of 18 express and implied claims – in this post, we’re going to focus on a few issues related to comparative claims against unnamed competitors. https:...

Last week, the FTC announced that it had finalized its rulemaking to add data breach notification provisions to the Gramm-Leach-Bliley Act (GLBA) Safeguards Rule. As expected, the new provisions require non-bank financial institutions to provide notice to the FTC of data incidents meeting certain thresholds and detail the trigger for, and content and timing of, the notice. The FTC’s proposal elici...

Our State AG webinar series continues. After spending time in the Centennial State, we went east to the Land of Lincoln. We met with Illinois Attorney General Kwame Raoul, Susan Ellis, Consumer Protection Division Chief, and Lyle Evans, Chief of Investigations, to learn about the office, their priorities, and more about Organized Retail Crime and the INFORM Consumers Act. https://www.kelleydrye.co...

This month, Google announced that it would soon implement new requirements for ​“bulk senders” – defined as senders who send more than 5,000 messages to Gmail addresses in one day – that will likely impact most companies that send marketing emails. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/new-gmail-marketing-requirements-will-impact-most-advertisers Gonzalo Mon gmon@kelleydrye.com...

California has a new tool in the toolbox when it comes to remedies available for certain consumer protection law violations. The governor of California recently signed legislation adding the remedy of disgorgement for AG actions under false advertising and unfair competition laws (Consumer Laws), which would require a party to repay all amounts obtained through illegal or wrongful acts. In additio...

We posted just last week about the Blackbaud multistate settlement, and as we have discussed, health privacy remains a hot topic and is already back in the news. On October 17th, 33 AGs led by Indiana, announced a multistate settlement in the form of a judgment with a Puerto Rico-based health care clearinghouse, Inmediata, for what the AGs alleged was a failure to appropriately safeguard data and...

Green is the new black, or so it seems, based on the growing number of companies that are making ​“green” claims. Claims about carbon reductions are particularly in fashion, both with advertisers and with a growing number of challengers who are questioning the basis for those claims. Some lawsuits even allege that there are ​“foundational issues with the voluntary carbon offset (“VCO”) market” – t...

In 1985, Bon Jovi released their second studio album, 7800° Fahrenheit. As a good New Jersey resident with good taste in music, I bought the album. I remember learning that the title supposedly referred to the melting point of rock, though I don’t remember if I ever attempted to verify that fact. (I also don’t remember how people verified facts before the advent of the internet.) https://www.kelle...

Smile Prep operates a website that provides reviews of clear aligners (otherwise known as ​“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 compan...

As we posted yesterday, the FTC announced a proposed rule that could fundamentally alter how businesses across industries advertise prices and disclose fees to consumers. At around the same time the FTC was preparing to announce the proposed rule, California AG Rob Bonta was commenting about California’s efforts to ban hidden or ​“junk” fees, boasting that ​“California now has the most effective p...

Blackbaud, a software company that was the subject of a multistate investigation for a 2020 data breach, has reached a settlement for $49.5 million with the attorneys general (AGs) of 49 states (not including California) and the District of Columbia, led by Indiana and Vermont. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/blackbaud-settles-multistate-investigation-related-to-data-brea...

The adoption of artificial intelligence (AI) in the workplace is accelerating with an increasing number of employers integrating AI-related technologies into every stage of the employment lifecycle – from recruitment to separation. While these technologies offer employers opportunities to streamline certain processes and make others more objective, they also pose certain challenges and legal risks...