Kelley Drye Ad Law Access Podcast

Recently, NAD released a decision in a case involving a Molson Coors ad that has received more press attention than any NAD decision in recent memory. In the ad, athletes are celebrating the completion of a difficult workout by opening a can labeled “Extremely Light Beer” and pouring the liquid over their heads while an announcer says “Light beer shouldn’t taste like water. It should taste like be...

As we’ve described here, the Senate made major strides last year on legislation to protect children’s privacy and safety online. Indeed, two bipartisan bills sailed through a Commerce Committee markup, though they didn’t ultimately make it to the floor for a Senate vote. This year, kids’ privacy is once again getting attention, beginning with a February 14 Senate Judiciary Committee hearing on the...

Twitter became the first social media platform to expressly allow cannabis advertising. https://www.adlawaccess.com/2023/02/articles/twitter-is-the-first-major-social-media-platform-to-expressly-allow-cannabis-advertising/ Kristi Wolff kwolff@kelleydrye.com (202) 342-8805 https://www.kelleydrye.com/Our-People/Kristi-L-Wolff Subscribe to the Ad Law Access blog - www.adlawaccess.com/subscribe/ Subsc...

If you tell your friends about your new year’s resolutions, odds are that most of those friends won’t push you for too much detail on how you plan to achieve your goals. But if those friends work at NAD, you might expect some pointed questions about whether you have a solid plan, whether you’ve started to work on that plan, and whether your goals are realistic. They’re not going to let you get by...

On February 9, the FTC provided the CFPB with its annual summary of activities enforcing the Equal Credit Opportunity Act (ECOA). The release of this summary provides a great opportunity for a round-up and some updates on new developments in this space over the past year. https://www.adlawaccess.com/2023/02/articles/ecoa-and-beyond-recent-updates-and-developments-in-discrimination-enforcement/ Ioa...

For the 26+ years I served at the FTC, the agency always described itself as a “law enforcement agency,” not a “regulator.” That’s because the FTC spent most of its resources on enforcing the FTC Act and other laws passed by Congress, not creating new regulations on its own. While it would be an exaggeration to say that the FTC has become a regulator in the mold of the federal banking agencies or...

Fake reviews continue to be a hot topic in consumer protection. In 2022, we reported that six states and the Federal Trade Commission filed a lawsuit against Roomster – a platform through which people can find rooms and roommates – along with its owners, alleging that they had “inundated the internet with tens of thousands of fake positive reviews to bolster their false claims that properties list...

While seventeen new state attorneys general are now sworn in and getting settled into their offices across the country, consumer protection continues to be the top of their agenda. Enforcement continues to take shape in different forms including individual actions, multistate investigations, and partnering with the Federal Trade Commission (FTC). This year we expect states to target particularly s...

Mikayla Nogueira is a 24-year-old beauty influencer with over 14 million followers on TikTok. At last count, that’s more than the number of followers we have at Ad Law Access, so she must be doing something right. (Or perhaps we’re doing something wrong by neglecting our readers’ beauty needs, but that’s a topic for another day.) In any event, Mikayla recently shared a tip that “literally just cha...

Instant Brands advertises that its Pyrex glass products are “Proudly Made in USA” and as “American as Apple Pie.” For many years, it appears that Instant Brands’ claims complied with the requirements set forth in FTC’s Made in USA Labeling Rule. But when the COVID-19 pandemic hit and consumers who were stuck at home turned to baking for solace, Instant Brands had trouble meeting the increased dema...

The Federal Communications Commission (“FCC” or “Commission”) is seeking comments on a Notice of Proposed Rulemaking (NPRM) to refresh its customer proprietary network information (“CPNI”) data breach reporting requirements (the “Rule”). Adopted earlier this month by a unanimous 4-0 vote of the Commission, the NPRM solicits comments on rule revisions that would expand the scope of notification obl...

These days, consumers can obtain everything from newspapers to meal kits to credit monitoring services through subscriptions. The prevalence of these services, and the ease with which consumers can sign up, have gotten the attention of regulators who are concerned that some negative option marketing might confuse or trick consumers. The CFPB, FTC, and state AGs have been particularly vocal about p...

The Federal Trade Commission’s (“FTC”) proposed rule banning the use of non-competes with employees and workers could regulate nearly every employer in the nation. If a final rule emerges from this proposal it could potentially prohibit non-disclosure, non-solicitation, and non-recruitment agreements and functional non-compete clauses. How can individual firms and industry groups alike weigh in on...

By now, most of our readers have likely heard about the FTC’s proposed rule to ban noncompete clauses in employment contracts, including from Kelley Drye’s other posts on the topic discussing the sheer breadth of the proposal and the potential implications for employers. In this post, we zero in on an issue that merits a lot more attention than it’s getting – namely, the serious legal and practica...

Consumers increasingly want to feel good about their buying decisions and like-minded companies often look for ways to communicate how they align with consumers through “cause marketing” campaigns. One popular type of campaign – commonly called a “commercial co-venture” or “CCV” campaign – involves a for-profit company advertising that a portion of a purchase will benefit a charity. https://www.ad...

On Friday, the FTC announced what would ordinarily be an unremarkable enforcement action against a company for unsubstantiated earnings claims. The FTC alleges that WealthPress, an investment advice company purporting to offer training from experts on trading strategies, made a series of unsubstantiated earnings claims such as “make $24,840 or more every single week,” “track the BIG money,” and th...

Last week, the Federal Trade Commission revealed what it meant when it vowed to be more than an antitrust and consumer protection agency. It announced a proposal to regulate virtually every labor and service relationship in the United States and make it more lucrative for people to quit. https://www.adlawaccess.com/2023/01/articles/ftc-proposes-to-regulate-virtually-every-labor-relationship-in-the...

We periodically stumble across older FTC investigations that have new relevance, and post about them as reminders. That happened recently as we get more questions about the use of recycled content and the desire to tout U.S.-based manufacturing. Although the FTC’s Enforcement Policy Statement and regulation regarding Made in USA claims do not mention how to evaluate recycled content, in a 2014 FTC...

Downloading an app, buying a product or service, or otherwise interacting with a company frequently requires consumers to consent to multi-page contracts. In a new proposed rule, the CFPB would require nonbank financial companies subject to the CFPB’s supervisory jurisdiction to register any use of such form contracts if they contain terms that seek to waive or limit consumer rights and legal prot...

We have previously discussed the emphasis that the FTC has put on fake reviews throughout 2022, with proposed updates to the Endorsement Guides and a proposed rule to combat fake reviews in addition to enforcement efforts. State Attorneys General continue to also make fake reviews a top priority. Washington Attorney General Bob Ferguson closed out 2022 by filing suit against Allure Esthetic, a Sea...

The 2019 movie Yesterday is about a world without the Beatles. The 2022 lawsuit over Yesterday is about a movie without Ana de Armas. Two fans who each paid $3.99 to rent the movie based on seeing the actress in the trailer decided to sue Universal after seeing that she had been removed from the final cut of the film. https://www.adlawaccess.com/2022/12/articles/ana-de-armas-fans-move-forward-on-f...

While State Attorneys General have been clear that social media companies are generally on their radar for a variety of consumer protection concerns, TikTok has been the latest to make headlines in recent weeks. For example, multiple states have banned TikTok from government phones, and a federal government ban may soon follow, because of concerns about the Chinese government’s control over the pl...

The FTC has released two companion settlements resolving allegations that Epic Games (maker of the popular video game Fortnite) violated the Children’s Online Protection Act (COPPA) and the FTC Act, with Epic to pay $520 million in penalties and consumer redress. The cases build on existing FTC law and precedent but add new dimensions that should interest a wide array of companies subject to FTC j...

Yesterday, the FTC’s Bureau of Consumer Protection released its Health Products Compliance Guidance—a sweeping overhaul of the 1998 Guidance, Dietary Supplements: An Advertising Guide for Industry. Unlike the recently announced effort to review its Green Guides, the FTC did not seek public comment prior to issuing this update. According to an FTC blog post that accompanied its release, the new Gui...

Money-back guarantees can often be subject to detailed terms and conditions. When advertising those guarantees, clients often ask us how much has to be disclosed in an ad itself, versus how much can be disclosed on a landing page. Although there isn’t a bright line rule, a recent NAD challenge sheds light on what practices may lead to complaints. https://www.adlawaccess.com/2022/12/articles/nad-ch...