Kelley Drye Ad Law Access Podcast

In connection with its convening of a panel of small businesses to provide input on potential regulatory actions, the CFPB released an outline of its proposals to use its rulemaking authority under the Fair Credit Reporting Act (FCRA) to cover data brokers and prohibit the use of medical debt collection data in making credit decisions. While the outline does not include any specific language, it e...

Big, BIG win for the direct selling industry, as Judge Barbara Lynn (N.D. Texas) grants judgment for Neora, LLC (formerly Nerium) on all of the FTC’s claims, including that the company was operating an illegal pyramid scheme and made deceptive income and product claims (both directly and through its distributors). Expect the FTC to gather itself and explain that this is one district court case bef...

A bipartisan coalition of 42 Attorneys General, led by Iowa, Nebraska, and Tennessee, and the Consumer Financial Protection Bureau (CFPB) announced a $35 million settlement with Tempoe LLC, a specialty consumer finance company. The multistate settlement resolves claims that the company’s marketing sales practices misled consumers that they signed up for an installment plan or credit sale to purcha...

Lawsuits challenging how companies advertise sales are on the rise. In this year alone, we’ve posted about a lawsuit over a grocer’s BOGO offers, a lawsuit over a major retailer’s frequent sales, and a large settlement over another retailer’s sale practices. This week brought news of a new $10 million settlement in a lawsuit alleging that SelectBlinds’ sale practices violated California law. https...

In October, we posted about the FTC’s day-long workshop on ​“Protecting Kids from Stealth Advertising in Digital Media” and wondered what the FTC might be planning. Last week, we got an answer when the FTC released a ​“Staff Perspective” on Protecting Kids from Stealth Advertising in Digital Media. With a foreword written by Sam Levine, Director of the FTC’s Bureau of Consumer Protection, the staf...

As we’ve discussed here, data brokers have been in the hot seat lately, with the enactment of new state data broker registry laws, aggressive enforcement by the FTC, a looming rulemaking by the CFPB to extend the FCRA’s reach to a broader class of data brokers, multiple federal bills to restrict data broker sales, and a recent meeting at the White House to discuss ​“harmful data broker practices”...

As the Supreme Court deliberates over the Fifth Circuit’s ruling that the CFPB’s funding method is unconstitutional, another court in the Fifth Circuit dealt a blow to the CFPB’s aggressive agenda. On Friday, the District Court for the Eastern District of Texas invalidated the Bureau’s March 2022 updates to its examination manual that instructed CFPB examiners to determine whether financial instit...

With the continuing onslaught of state privacy laws, it’s easy to become overwhelmed by the number of new legal obligations while also trying to stay focused on identifying and mitigating the most pressing legal and business risks. Over the past couple of months, we’ve had the opportunity to meet with privacy professionals to hear about their top challenges and offer some practical perspectives of...

The FTC is not holding its breath on whether Congress will enact AI legislation. Instead, as we have previously reported, the FTC is relying on its own toolkit and has warned businesses that false or unsubstantiated claims related to AI could run afoul of the FTC Act. https://www.adlawaccess.com/2023/09/articles/cant-lie-about-your-ai-the-ftcs-most-recent-case-with-ai-allegations/ Jessica Rich jri...

Earlier this month, in a step toward implementing the Modernization of Cosmetics Regulation Act of 2022 (MoCRA), FDA issued a draft guidance document titled “Registration and Listing of Cosmetic Product Facilities and Products: Guidance for Industry.” For those who may be new to MoCRA, this legislation significantly overhauled FDA oversight of the cosmetics industry by requiring manufacturers, pac...

A few months ago when sun-seeking consumers were eagerly anticipating the start of summer, we wrote about a consumer false advertising case involving Beiersdorf’s Coppertone sunscreen brand. In that case, plaintiff Tonya Akes, a consumer, sued Beiersdorf, Inc., maker of Coppertone sunscreen, alleging that Beiersdorf engaged in deception because it sold the SPF 50 Coppertone Sport Mineral Face suns...

A year ago, the FTC and six states filed a lawsuit against Roomster and its owners, alleging that they had posted “tens of thousands of fake positive reviews to bolster their false claims that properties listed on their Roomster platform are real, available, and verified.” At the same time, the regulators announced a settlement with an individual (doing business as AppWinn) who allegedly sold Room...

During the past year, there’s been a flurry of regulatory activity related to data brokers. Whether in Congress or state legislatures, at federal agencies or the White House, many policymakers are pushing in the direction of increased regulation. For those not following this issue closely, here’s a snapshot of some key developments, starting with some history: https://www.adlawaccess.com/2023/08/a...

Google recently ran two commercials for its YouTube TV service, each of which ended with the following tagline: “More than cable. For $600 less than cable.” A disclosure at the bottom of the screen explained: “Annual average savings based on a study by SmithGeiger of the published cost of comparable standalone cable in the top 50 Nielsen DMAs, including all fees, taxes, promotion pricing, DVR box...

On October 10, 2022, the FTC Collaboration Act of 2021 became law. The Act’s stated purpose is to enhance cooperation between the Federal Trade Commission (FTC) and state attorneys general (AGs) in combatting unfair and deceptive practices. The Act requires the FTC to complete a study and issue a public report based on that study. Throughout the summer, the FTC accepted comments from interested st...

The buzz around generative AI has raised many IP-related questions, such as the legality of using IP to train AI algorithms or ownership of AI-generated content. But the FTC warns that claims about content ownership don’t just give rise to IP concerns – they could also constitute FTC Act violations if they meet the unfair or deceptive standard in Section 5. (Click here and here for our take on oth...

This summer has been hot all around, but perhaps the hottest topic on the minds of state attorneys general (AGs) continues to be artificial intelligence (AI). As we recently heard from Colorado Attorney General Phil Weiser, AI is a big concern for regulators trying to understand all the ways in which AI permeates our daily lives in order to effectively regulate the algorithms that create the AI. h...

As most people know – either from professional or personal experience – the CAN SPAM Act requires companies who send “commercial” email messages to give consumers an opportunity to opt-out of receiving those messages in the future. The opt-out requirement does not apply to “transactional” messages, which generally facilitate an already agreed-upon transaction or update a customer about an ongoing...

NARB recently announced a decision in a case involving various claims that Shark Ninja made in an infomercial for its Shark Stratos Powered Lift-Away vacuum cleaner, including claims about how well the vacuum picks up hair and how well it reduces odors. The decision covers a lot of ground – Dyson challenged six express claims and nine implied claims – but we’re just going to focus on a few issues...

We regularly cover challenges to “Made in USA” claims, particularly by the FTC, but most of the time those cases don’t rely on consumer perception evidence about what the claim means. So the recent class certification in the Central District of California in a case against R.C. Bigelow, Inc. caught our attention. Plaintiffs allege that Bigelow misrepresents that its tea is “Manufactured in the USA...

Last week, BINT Operations LLC aka “Blessings in No Time” (“BINT”) and its owners resolved two separate, but coordinated, lawsuits stemming from states’ and the FTC’s investigations alleging perpetration of an illegal pyramid scheme. https://www.adlawaccess.com/2023/08/articles/texas-ag-arkansas-ag-and-ftc-dont-bless-pyramid-scheme-blessings-in-no-time/ Paul Singer psinger@kelleydrye.com (202) 342...

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: “Do...

We continue our State AG webinar series traveling farther west past the Great Plains to the Rocky Mountains in Colorado. Last week, we spoke with Colorado Attorney General Phil Weiser and Deputy Attorney General for Consumer Protection, Nathan Blake, and covered a wide range of topics from the office’s structure, to the Colorado Privacy Act, to artificial intelligence (AI), and teen mental health....

Last year, the Senate Commerce Committee marked up two bipartisan bills to protect kids’ privacy and safety – the Kids Online Safety Act (KOSA), and the Children and Teens’ Online Privacy Protection Act (COPPA 2.0) – amidst high hopes that the bills would get a vote on the Senate floor. With comprehensive privacy legislation still tripped up over preemption and private rights of action, policymake...

Most NAD cases are brought by competitors, but NAD can also initiate a proceeding pursuant to its “responsibility for monitoring and reviewing national advertising for truthfulness and accuracy.” Looking at the cases NAD initiates on its own can help provide insights into its priorities and strategies. https://www.adlawaccess.com/2023/07/articles/nad-reads-into-wsjs-cancel-anytime-claims/ Gonzalo...