Kelley Drye Ad Law Access Podcast

This week, the FTC held its Talking Trash at the FTC workshop, a four-hour event intended to examine “recyclable” claims in ads. We’ve sifted through some of the trash and pulled out a few things worth noting. https://www.adlawaccess.com/2023/05/articles/talking-trash-at-the-ftc-event-recap/ Gonzalo Mon gmon@kelleydrye.com (202) 342-8576 www.kelleydrye.com/Our-People/Gonzalo-E-Mon Katie Rogers kro...

Google updated its privacy terms earlier this month, shifting away from offering many of its advertising services on a “service provider” basis. With the change, Google states that its Customer Match, Audience Partner API, and certain audience-building services no longer meet the CCPA’s strict new requirements to be offered on a “service provider” basis. The implication of this change is that comp...

Abraham Lizama purchased a turquoise sweater from H&M’s “Conscious Choice” collection, a line of clothing “created with a little extra consideration for the planet” which generally include “at least 50% of more sustainable materials.” Although we imagine that Lizama looked quite handsome in his sweater, he soon regretted his purchase and filed a class action against the retailer, accusing it of gr...

State AG executives and consumer protection staff gathered for the 2023 NAAG Consumer Protection Spring Conference. After a warm welcome to Florida by John Guard, Chief Deputy Attorney General in Florida, first on the agenda was the much-anticipated discussion with Attorney General John Formella of New Hampshire and AG executives Lacey Mase, Chief Deputy in Tennessee, Jennifer Levy, First Assistan...

In the past couple years, the Federal Trade Commission has gone 0 for 2 before the Supreme Court. In AMG, the Court found that Section 13(b) of the FTC Act does not provide the Commission with the authority to obtain equitable monetary relief. Last month, in Axon, the Court held that parties need not wait until the conclusion of administrative proceedings before challenging the constitutionality o...

During the Federal Trade Commission’s (FTC) Open Meeting on May 18, the Commissioners unanimously voted to adopt the Policy Statement on Biometric Information and Section 5 of the FTC Act. The Policy Statement broadly defines biometric data, catalogues the risks the Commission believes are posed by technology that utilizes biometric information, and imposes substantive requirements on companies em...

In January 2022, the Texas Attorney General filed a lawsuit against Google alleging that the company engaged iHeartMedia DJs to provide endorsements for its Pixel 4 phone, even though they had never used it. In November 2022, the FTC and several state attorneys general announced settlements with Google and iHeartMedia over the same conduct. Although Texas settled with iHeartMedia, it continued to...

Earlier this week, FDA issued draft guidance for staff updating the agency’s existing enforcement policy regarding major food allergen labeling and cross-contact prevention. The updated guidance reflects the addition of sesame as a major allergen, discusses how allergens must be disclosed when used as an ingredient in packaged food, and details the preventive controls provisions in 21 CFR § 117 ap...

Our State AG webinar series continues with Connecticut Attorney General William Tong and Chief of the Privacy Consumer Protection Section Michele Lucan. During our webinar, the Connecticut AG’s office described their structure and the tools available to them to enforce the state’s consumer protection laws. In particular, as the fifth state to pass comprehensive privacy legislation, AG Tong highlig...

Can claims that are factually true still be deceptive? This is the question before a Connecticut federal court. Last summer, 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 sunscreen, which she alleges she believed was “specifically designed” for use on the face base...

My Patriot Supply (or “MPS”) and 4Patriots both make long-term survival food kits and related products. If a natural disaster strikes, if AI-powered bots wreak havoc on humanity, or if you just want to binge-watch your favorite shows and tune out the rest of the world, these companies have your back. But they don’t have each other’s backs. https://www.adlawaccess.com/2023/05/articles/advertising-l...

On June 27, 2023, “online marketplaces” (i.e., online selling platforms like Amazon and EBay) will have some brand new obligations. So will many of the third party sellers that operate on these platforms. https://www.adlawaccess.com/2023/05/articles/new-law-governing-online-platforms-and-sellers-takes-effect-in-june-are-you-ready/ Jessica Rich jrich@kelleydrye.com (202) 342-8580 https://www.kelley...

Over the past few weeks, we’ve posted about a few cases involving pricing claims, including a post discussing a lawsuit over a grocer’s BOGO offers, a post discussing a lawsuit over major retailer’s frequent sales, and a post discussing an NAD challenge over claims that a smaller retailer made about its sales. If those didn’t catch your attention, today’s post about a $197 million settlement shoul...

Mike Lindell – the “My Pillow Guy” – makes pillows that are soft to touch and claims that are hard to prove. In 2021, Lindell announced that he had compiled evidence demonstrating that China had interfered in the 2020 presidential election. He was so confident in the evidence that he launched the Prove Mike Wrong Challenge, a contest with one goal: “Find proof that this cyber data is not valid dat...

On Tuesday April 18, FTC Chair Khan, and Commissioners Bedoya and Slaughter spent almost three hours responding to criticism and compliments before its House oversight panel. Only occasionally did the hearing cover its title subject – “Fiscal Year 2024 Federal Trade Commission Budget” – and the reaction was not encouraging for the agency. For most of the hearing the Members and Commissioners debat...

When a Chairman opens an appropriation hearing with these words, an agency seeking funds has a tough task ahead. Undaunted, FTC Chair Lina Khan turned on the charm and often mollified her critics. Appropriators pressed her about the FTC’s proposals to ban non-compete clauses and regulate auto dealers. They complained about reports of scams and fraud on the rise while the FTC pursued subjective not...

The FTC took unprecedented action yesterday when it moved to impose what it describes as a “blanket prohibition” preventing the company from monetizing young people’s data. The FTC contends that this prohibition is warranted as a result of repeated violations of Meta’s 2020 consent order (“Proposed Order”). https://www.adlawaccess.com/2023/05/articles/ftc-attempts-end-run-to-ban-meta-from-monetizi...

On April 27, 2023, Washington Governor Jay Inslee signed into law the My Health My Data Act (MHMD). The law has an effective date of July 23, 2023, but the deadline to comply with most of its requirements is March 31, 2024.* While the 2023 state legislative season may see the addition of four comprehensive privacy laws (Iowa, Indiana, Montana, and Tennessee), My Health My Data (HB 1155) could have...

Recently, two Washington consumers filed a proposed class action lawsuit accusing Old Navy of spamming them with emails that included false or misleading information about the duration of sales. https://www.adlawaccess.com/2023/04/articles/lawsuit-accuses-old-navy-of-creating-false-sense-of-urgency/ Gonzalo Mon gmon@kelleydrye.com (202) 342-8576 www.kelleydrye.com/Our-People/Gonzalo-E-Mon Subscrib...

Enforcement in the telehealth space continues – this time with a bipartisan settlement between 11 State AGs and Visibly (f.k.a. Opternative), a vision telehealth company. Unlike recent telehealth settlements where enforcers focused on consumer privacy, the State AGs focused on whether the company’s claims about its products and services, including its online vision tests, were properly substantiat...

Artificial intelligence and algorithmic processes continue to remain at the top of federal law enforcement agencies’ agendas. Yesterday, the FTC, CFPB, DOJ, and EEOC issued a joint statement pledging to use their respective tools to “protect the public from bias in automated systems and artificial intelligence.” https://www.adlawaccess.com/2023/04/articles/ftc-cfpb-doj-and-eeoc-pledge-increased-fo...

This week, State AGs and their staff gathered to participate in the annual National Association of Attorneys General AG Symposium, where they discussed topics such as leadership, relationships with prosecutors, and Supreme Court updates. One of the most topical panels was a discussion of “Regulating Algorithms – The How and Why” moderated by Natalie Hanlon Leh, Chief Deputy AG of the Colorado AG’s...

NAD recently announced two decisions involving Biossance’s Squalane & Marine Algae Eye Cream. Neither of the decisions involved claims made by the company itself, though. Instead, the decisions involved mentions of the eye cream made by third parties – Sephora and Hello! Magazine – and NAD generally focused on the question of whether the product mentions constituted ads. https://www.adlawaccess.co...

Two recently-introduced bills are sending a message in Washington D.C.: federal law should harmonize with states on marijuana issues. https://www.adlawaccess.com/2023/04/articles/lawmakers-reintroduce-key-federal-cannabis-legislation/ Kristi Wolff kwolff@kelleydrye.com (202) 342-8805 www.kelleydrye.com/Our-People/Kristi-L-Wolff Shea O'Meara someara@kelleydrye.com (212) 808-5042 www.kelleydrye.com/...

Indiana’s Consumer Data Protection Act advanced in the state legislature last week and now heads to Governor Eric J. Holcomb’s desk. The bill mirrors comprehensive privacy legislation enacted in Virginia, Utah, and Iowa, further extending the reach of privacy protections in the United States but without the complex mandates found in laws in California, Colorado, and Connecticut. Following on the h...