Kelley Drye Ad Law Access Podcast

On July 21, 2023, the White House announced that it had secured commitments from the leading artificial intelligence companies to manage the risks posed by AI. As stressed in the press release and in news articles since, these commitments are just the beginning of a longer process to ensure the “safe, secure, and transparent” development of AI. https://www.adlawaccess.com/2023/07/articles/those-ai...

The California Privacy Protection Agency (CPPA) and California Office of Attorney General (OAG) are publicly pressing ahead with enforcement now that they have the authority to enforce the California Consumer Privacy Act (CCPA) as of July 1st. While the agencies did not announce headline grabbing enforcement decisions at the start of the month, there were some notable developments. https://www.adl...

With so much going on in the privacy space, it can be hard to keep track of everything. For example, while you were struggling to keep pace with rapidly advancing state privacy laws, FTC and EU privacy developments, market and technological changes, and various proposals to protect children’s privacy, you might have missed some eye-opening developments regarding the government’s purchase of consum...

Two years ago this month, the state of Colorado joined California and Virginia in the passage of broad consumer protection legislation when the Colorado Privacy Act (CPA) was signed into law. https://www.adlawaccess.com/2023/07/articles/colorado-consumer-data-privacy-law-is-in-effect/ Alysa Hutnik ahutnik@kelleydrye.com (202) 342-8603 https://www.kelleydrye.com/Our-People/Alysa-Z-Hutnik Aaron Burs...

An implacable Lina Khan fended off four hours of hostile questions from members of the House Judiciary Committee, who criticized her ethics and performance as FTC Chair and then proceeded to attack FTC career staffers, each other, and Congress itself at a grueling oversight hearing on July 13. Accusations of mismanagement, cover-ups, conflicts of interest, and partisanship made good theatre and na...

On the Friday before a long 4th of July weekend, the FTC delivered some light beach reading in the form of a 100-page notice of proposed rulemaking (NPRM) “banning fake reviews and testimonials.” While banning fake reviews and testimonials seems uncontroversial, the proposed rule would actually do much more, including authorizing civil penalties for businesses that procure or disseminate deceptive...

On June 29, 2023, the FTC released the long-awaited updates to the Guides Concerning the Use of Endorsements and Testimonials in Advertising – more commonly known as the Endorsement Guides – along with an updated FAQ entitled What People Are Asking. We summarized some of the key changes in our post the same day. https://www.adlawaccess.com/2023/07/articles/how-the-ftcs-revised-endorsement-guides-w...

On June 23, 2023, a bipartisan coalition of 26 state attorneys general (AGs) submitted comments in support of the FTC’s amendments to the Negative Option Rule (Rule). Though the AGs assert that the FTC’s requirements under the proposed Negative Option Rule are already generally required by existing state and federal law, the AGs agreed that additional guidance and specificity on compliance with ne...

In May 2022, the FTC proposed changes to its Endorsement Guides. Among other things, those changes created more prescriptive disclosure requirements for endorsements, imposed various requirements for consumer reviews, and clarified that all parties involved in a marketing campaign could be held liable for lapses. At that time, we analyzed the FTC’s proposed changes and examined how they might impa...

Yesterday, the FTC announced an $18.5 million settlement with Publishers Clearing House (PCH), a marketing company known for using sweepstakes to sell magazine subscriptions. In its 52-page complaint, the FTC alleges PCH used purported “dark patterns” to promote product purchases, failed to disclose total costs, misrepresented its privacy practices, and used misleading email headers in violation o...

This week, just a few days before the Fourth of July holiday, the FTC announced a settlement with three fashion companies (that operated together as a common enterprise) over patriotic claims that the companies made about various accessories, such as belts, bags, wallets, and shoes. https://www.adlawaccess.com/2023/06/articles/latest-made-in-usa-settlement-offers-lessons-for-fashion-companies/ Gon...

As we’ve written here, a brand new law governing online marketplaces and sellers takes effect TODAY, Tuesday, June 27. The new law (the Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act, or INFORM Consumers Act) is designed to deter criminals from selling counterfeit, stolen, defective, and dangerous products through online marketplaces. https://www.adlawaccess....

In a deep sea of consumer fraud and deceptive packaging litigation, glimpses of reason are starting to emerge in the slack fill space, suggesting that these cases may (finally) be on the decline. https://www.adlawaccess.com/2023/06/articles/no-pain-no-grain-golden-grain-companys-slack-fill-victory/ Jaclyn Metzinger jmetzinger@kelleydrye.com (212) 808-7843 https://www.kelleydrye.com/Our-People/Jacl...

Our State AG webinar series continues, this time with Nebraska Attorney General Mike Hilgers and Consumer Protection Division Chief Phil Carlson, a position previously held by our own Abby Stempson. During our webinar, the Nebraska AG’s Office highlighted its consumer protection work during a time of transition and general consumer protection topics. In case you missed it, here is a recording of t...

JBS – the second-largest food company in the world – made several aspirational claims about its commitment “to be net zero by 2040.” Those claims were challenged by a trade association, who argued that the claims were misleading. As we reported in February, although NAD acknowledged that JBS had taken steps that “may be helpful towards achieving net-zero by 2040,” NAD found that those steps weren’...

In 2017, the FTC announced that Adore Me, an online lingerie company, had agreed to return more than $1.3 million to customers who enrolled in a negative-option membership program offering discounts and other benefits. Almost six years later – in another example of states pursuing settlements on their own – 32 state attorneys general announced a $2.3 million settlement with Adore Me over the same...

Our State AG webinar series continued with Connecticut Attorney General William Tong and Chief of the Privacy Consumer Protection Section Michele Lucan. In Part I, we discussed Connecticut’s rollout of their new comprehensive privacy law, and in Part II we will discuss how consumer protection operates at the Office of the Attorney General in Connecticut. https://www.adlawaccess.com/2023/06/article...

As most privacy watchers know, one of the hot-button issues in the ongoing debate over federal legislation is whether the law should include a private right of action (PRA). As we also know, some existing federal privacy laws include a PRA (e.g., the Cable Communications Policy Act) and some don’t (e.g., the Children’s Online Privacy Protection Act). https://www.adlawaccess.com/2023/06/articles/jo...

Plaintiffs recently filed a class action lawsuit against Delta, alleging that the airline’s “carbon-neutral” claims, such as: “Carbon Neutral Since March 2020,” and “travel confidently knowing that we will offset the carbon emitted on your Delta flight,” are misleading because they are based on unreliable carbon offsets. The complaint does much more than challenge Delta’s specific claims, though....

In 2019, the FTC announced a settlement with a retailer over allegations that it had encouraged employees to write favorable reviews of its products without disclosing they worked for the company. Most observers weren’t surprised that the FTC found that conduct to be problematic or that the terms of the settlement required the company to instruct employees to clearly disclose that worked for the c...

Last week, a mental-health chatbot used by the National Eating Disorder Association suddenly began giving diet advice to people seeking help for eating disorders. The rogue chatbot had apparently been developed as a closed system, but the software developer rolled out an AI component to the chatbot in 2022. NEDA claims it was not consulted about the update and did not authorize it. The organizatio...

Last month, the Texas Attorney General agreed to a settlement in principle with car manufacturers Audi and Volkswagen requiring them to pay a civil penalty of $85 million for alleged violations of the Texas Clean Air Act and environmental regulations. In 2015, the Texas AG filed separate consumer protection and environmental lawsuits against Volkswagen and Audi alleging that the companies used ill...

When a disclosure is necessary to prevent an ad from being misleading, the disclosure must be presented in a “clear and conspicuous” manner. Exactly what that means depends a lot on the context, but one question we get regularly is whether disclosures can be presented through a hyperlink. In a recent decision involving ads for HelloFresh, NAD looked at FTC guidance and considered just how much of...

As we have previously reported, State Attorneys General have joined other enforcers in addressing the latest AI technology. At the recent 2023 NAAG Consumer Protection Spring Conference, two separate panels discussed how the AGs are focusing on AI. https://www.adlawaccess.com/2023/05/articles/ags-and-ai-transparency-is-key/ Paul Singer psinger@kelleydrye.com (202) 342-8672 www.kelleydrye.com/Our-P...

The FTC has made news recently with its recent enforcement activity regarding companies’ alleged disclosures of consumer health data, as detailed in our recent post FTC to Advertisers: We’re tracking Your Use of Health information, and as evidenced by the FTC’s tentative agenda for its next open meeting later this month on potential rulemaking regarding amending the Health Data Breach Notification...