Kelley Drye Ad Law Access Podcast

New York’s legal cannabis market is growing up. And it with? More regulations. The Cannabis Control Board, a subset of the Office of Cannabis Management charged with overseeing marijuana regulations statewide, approved a set of labeling, packaging, and advertising regulations. These new rules are part of a trend of more sophisticated enforcement and regulation in the cannabis industry, particularl...

Buy One, Get One – or “BOGO” offers – are popular with consumers and almost ubiquitous in grocery stores and other retailers across the country. Although retailers have a lot of flexibility in how to structure those offers, they need to ensure that the offers aren’t structured in a manner that overstates the amount of money that consumers can save. https://www.adlawaccess.com/2023/04/articles/safe...

Earlier this week, District of Columbia Attorney General Brian Schwalb settled one of two outstanding lawsuits against the Washington Commanders – this time over allegedly deceptive practices related to security deposits paid by season ticket holders. These deposits, which averaged $1,200, were supposed to be returned by the team thirty days after the expiration of ticket holders’ contracts, but t...

The FTC sent out new penalty offense notices to 670 companies today, warning them that failure to substantiate product claims could result in civil penalties of more than $50,000. The companies also received copies of the FTC’s previously-issued penalty offense notices regarding endorsements and testimonials. This represents the FTC’s fourth round of penalty offense notices (previous notices invol...

While it may be common knowledge for many that state attorneys general (State AGs) bring enforcement actions under state consumer protection laws, it is likely less well-known that the State AGs also serve a role under the Class Action Fairness Act (CAFA). State AGs typically receive notice through CAFA as “appropriate state officials” if the settlement proposed includes class members in their sta...

Last week, in its most high-profile effort yet to focus attention on data privacy and security, the House Committee on Energy & Commerce held a hearing with TikTok’s CEO Shou Zi Chew. The full-Committee hearing was high drama, with sharp statements and accusations about TikTok’s connections to the Chinese government, wide attendance by Committee members, and extensive press coverage during the hea...

Negotiating exclusivity provisions in agency agreements can often be difficult. Companies want to broadly prevent agencies from working for competitors, while agencies are reluctant to cut off other sources of work. In most cases, though, once the parties have settled on the terms, the relationship moves forward and any disputes are resolved amicably behind the scenes. A recent lawsuit filed by Ma...

Back in October of 2021, the FTC announced a settlement with Resident Home, LLC and its CEO, Ran Reske, for deceptively advertising its DreamCloud brand mattresses as being made with 100% USA-made materials. The administrative settlement included $753,300 in monetary redress pursuant to Section 19 of the FTC Act. Despite agreeing that Resident Home had violated the law, then-Commissioners Phillips...

If you want to advertise that something is the “best,” do you need substantiation? Or can you rely on a puffery argument? Although the answer depends on context, one paragraph in a recent NAD decision seems to conflict with longstanding precedent. Gonzalo Mon gmon@kelleydrye.com (202) 342-8576 www.kelleydrye.com/Our-People/Gonzalo-E-Mon Subscribe to the Ad Law Access blog - www.adlawaccess.com/sub...

Our State AG webinar series continues, this time with Ohio Attorney General Dave Yost and Chief of the Consumer Protection Section Melissa Wright. During our webinar, the Ohio AG’s office highlighted its consumer protection work as it relates to veterans and its Robocall Enforcement Unit. In case you missed it, here is a recording of the webinar. We have also recapped what we learned below. https:...

As we count down the last days of March, we mark the end of Christine Wilson’s tenure at the Federal Trade Commission. Set to resign March 31, Commissioner Wilson will have served four and a half years at the FTC – a little longer than a single presidential term. What many probably don’t know, however, is that she had prepared for this job her entire professional life. https://www.adlawaccess.com/...

This week, 22 State AGs led by Wisconsin, sent Hyundai and Kia a letter criticizing the companies’ lack of anti-theft immobilizers and use of a customer service campaign instead of a recall to address the problem. The letter blames the car makers for “lack of responsibility for the crisis” of car thefts with “alarmingly high rates of thefts” saying they are harming consumers and affecting public s...

If you’re offering any products or services involving a negative option or automatic renewal plan, pay close attention to the FTC’s announcement today of a proposed rule that would drastically alter requirements for negative option disclosures while simultaneously granting the agency authority to seek redress and civil penalties for misrepresentations unrelated to the negative option transaction i...

On February 16, 2023, the Attorneys General of Ohio and Pennsylvania announced a settlement with Ohio-based DNA Diagnostics Center (“DDC”) for a 2021 data breach which involved 2.1 million residents nationwide, including the social security numbers of over 45,000 Ohio and Pennsylvania residents. As a part of the settlement, which resolves alleged violations of Ohio and Pennsylvania consumer protec...

If Iowa Governor Kim Reynolds signs Senate File (SF) 262, the Hawkeye State will become the sixth state to adopt a comprehensive consumer privacy law. Iowa’s House and Senate have both passed Senate File 262 unanimously. If approved, SF 262 will go into effect January 1, 2025. https://www.adlawaccess.com/2023/03/articles/iowa-a-sixth-state-privacy-law/#more-11487 Aaron Burstein aburstein@kelleydry...

Last year, we wrote about a challenge that NAD had initiated against various green claims made by the American Beverage Association (or “ABA”). NAD found that several of ABA’s claims – including claims that “our bottles are made to be remade” and “we’re carefully designing our bottles to be 100% recyclable” – were substantiated, but had concerns with others. ABA appealed the decision. Last week, N...

If a third-party writes a good review of your product – or, even better, rates it as one of the best – can you link to that review? A new NAD decisions suggests that the answer may not be as easy as people think. https://www.adlawaccess.com/2023/03/articles/nad-explores-when-companies-can-be-responsible-for-third-party-reviews/ Gonzalo Mon gmon@kelleydrye.com (202) 342-8576 www.kelleydrye.com/Our-...

As we have discussed, most consumer protection laws give attorneys general broad authority to perform pre-litigation discovery through investigative subpoenas, often termed “civil investigative demands” (CIDs). Many attorneys general can also require sworn statements and answers to interrogatories pursuant to this statutory authority. Businesses should be aware (and beware) that failure to comply...

On March 13, 2023, the FTC submitted its 2024 budget request to Congress, along with a performance plan for FY 2023-2024 and a performance report for FY 2022. While generally an aspirational document, the budget includes a few notable asks that provide clues about agency priorities in the consumer protection space.. https://www.adlawaccess.com/2023/03/articles/reading-the-tea-leaves-in-the-ftcs-20...

A recent post on the FTC’s Business Blog notes that although there may be disagreement about what “artificial intelligence” or “AI” is, those terms are being used in marketing campaigns, and the FTC worries that some advertisers “won’t be able to stop themselves from overusing and abusing them.” To help those advertisers out, the FTC’s post includes four questions that they should ask themselves....

For $9.99 per month, Pier 1 offers Pier 1 Rewards, a loyalty program that includes benefits such as a 10% discount on all purchases and free shipping and returns on eligible items. Until recently, when a consumer added an item to a cart, the company would automatically also add the Pier 1 Rewards membership to the cart (with a pre-checked box indicating acceptance) and apply the 10% discount. A co...

Our State AG webinar series continues, this time with Consumer Protection Division Director Kevin Anderson and Deputy General Counsel Daniel Mosteller of the North Carolina Attorney General’s Office (NC AGO). During our webinar, we learned about the office’s structure, consumer protection work as it relates to public health issues, and the tools they have pursuant to the consumer protection laws o...

For the second time in as many months, the Federal Trade Commission (FTC) last week announced a settlement alleging that a company’s the use and disclosure of consumers’ health information for online advertising violated the law. The BetterHelp settlement indicates that the FTC takes a broad view of what constitutes “health information,” but it raises questions about how the FTC will apply its rei...

Last week, as severe weather hit the country, price gouging laws were triggered ranging as far as California to Kentucky. And as we’ve previously reported, complying with the varied state price gouging laws can be tricky, especially where they use undefined terms like “excessive” or “exorbitant” to define price gouging. Last week the New York Attorney General announced proposed rules designed stre...

This past week, the internet lit up over whether it was okay for President Biden and the First Lady to order the same dish at the Red Hen. In this issue, we invite you to read the February highlights on clean labeling false advertising litigation, updates on green claims, thoughts on whether light beer should taste like beer, FDA’s plant-based milks draft guidance, and USDA’s enhanced authority on...