Kelley Drye Ad Law Access Podcast

Yesterday, the FTC announced a court order requiring GOAT – an online marketplace for sneakers, apparel, and accessories – to pay more than $2 million for violating the Mail Order Rule, which requires companies to have reasonable shipping practices. The FTC’s complaint also alleged that GOAT offered an ​“Assurance of Authenticity” and ​“Buyer Protection” for consumers that received deficient produ...

Last Thursday, the Consumer Financial Protection Bureau (CFPB) announced a Final Rule authorizing the agency to supervise and conduct examinations of certain non-bank providers of digital wallets and payment apps for consumers’ general use. The Final Rule, which takes effect 30 days after publication in the Federal Register, largely mirrors the agency’s earlier proposed rule, which we blogged abou...

When an advertiser makes a comparison against a category of products, it must generally substantiate the claim against 85% of the products in that category. It’s common for advertisers to narrow down a category in order to narrow down their substantiation requirements. Although advertisers have some discretion in how they do that, a recent NAD decision suggests there are limits to that discretion....

Led by Tennessee Attorney General Skrmetti, 32 attorneys general (AGs) sent a bipartisan letter (19 Republicans and 13 Democrats) to both houses of Congress this week, supporting the passage of the Kids Online Safety Act (KOSA). This comes after a bipartisan letter from 42 AGs to Congress in September concerning social media warning labels. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access...

Last Friday, the FTC’s final Negative Option Rule was published in the Federal Register, starting the clock on the effective dates for the agency’s expansive overhaul of requirements related to goods or services sold through any negative option or automatic renewal plan, including free trials, subscriptions, and repeat delivery offers. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/with...

On November 8, the California Privacy Protection Agency (CPPA) voted 5-0 to approve new regulations to implement the DELETE Act of 2023. The most noteworthy development was the agency’s adoption of a new definition of ​“direct relationship,” a core term within the statutory definition of a ​“data broker.” The new definition could require a host of new businesses to register as data brokers if they...

In January, we reported that a judge in the Southern District of New York refused to dismiss a class action alleging that ​“carbon neutral” claims on bottles of Evian water were misleading. The judge determined that the term ​“carbon neutral” was ​“unfamiliar to and easily misunderstood” by reasonable consumers and that Danone Waters’ attempts to qualify the term with information on its website we...

As we noted in a previous post, the FTC’s Rule on the Use of Consumer Reviews and Testimonials, which went into effect on October 21, 2024, addresses deceptive conduct involving consumer reviews and testimonials and authorizes courts to impose civil penalties for knowing violations. This month, FTC staff released an FAQ with answers to 74 questions about the rule. Here are some of the highlights t...

Under many circumstances, state privacy laws require businesses to pass a consumer’s valid deletion request to any entity that processes the data on behalf of the business or otherwise is a recipient of the data. These so-called ​“flow-down” obligations can be challenging to unpack. Here’s a look at the flow-down obligations that may be applicable, depending on the circumstances. https://www.kelle...

With the election decided, the speculation has begun. In our area of the law, that means a number of things, including what will happen at the FTC – with the current Commission and Chair Khan, with recently announced rules and those forthcoming, and with pending and future investigations, amongst other issues. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/what-to-expect-at-the-ftc-pre-...

On October 31, 2024, LA County Counsel filed a lawsuit against PepsiCo and Coca Cola on behalf of California in an attempt to hold the companies ​“accountable for their role in the plastic crisis that is overwhelming the County.” On the same day, a New York state judge dismissed a similar lawsuit that the NY Attorney General had filed against PepsiCo last year. We offer a high-level summary of key...

Last year, we wrote about the FTC’s proposal to massively expand the Negative Option Rule to cover any goods or services involving a negative option or automatic renewal plan, including free trials, subscriptions, and repeat delivery offers. www.kelleydrye.com/viewpoints/blog…delivery-offers Donnelly McDowell dmcdowell@kelleydrye.com (202) 342-8645 www.kelleydrye.com/people/donnelly-l-mcdowell Kat...

Unbeknownst to me (until yesterday), Fat Bear Week has been a big event for the past ten years. As far as I can tell, it’s like a reality show in which the contestants are bears, instead of humans. And unlike some human reality shows where the goal is to lose as much weight as possible, the goal here seems to be to gain as much weight as possible. As with other reality shows, there can be drama be...

Last year, the FTC updated its Endorsement Guides to impose more stringent requirements on how influencers must disclose their relationships to the companies whose products they promote. Although the FTC later sent letters to two trade associations and 12 influencers warning that their disclosures failed to comply with the new requirements, the agency has been fairly quiet in this area since then....

No, that is not a clock you hear – it’s just TikTok in the news again, as several states filed lawsuits or other legal challenges last week against the platform, alleging harmful and exploitative tactics affecting the mental health of children users. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/tiktok-faces-new-challenges-from-state-ags Paul Singer psinger@kelleydrye.com (202) 342-867...

On Tuesday, the Consumer Financial Protection Bureau (CFPB) released the final version of the Personal Financial Data Rights Rule that requires many financial institutions, credit card issuers, and other financial service providers that facilitate payments (including mobile wallets and payment apps) to support new open banking standards and make account records accessible and portable. The CFPB us...

Much has already been said and written about the FTC’s recent enforcement initiative, dubbed ​“Operation AI Comply.” The coordinated sweep announced last month involved five separate FTC enforcement actions against companies using or claiming to use AI tools to enhance consumer goods and services. For example, as part of the sweep, the FTC targeted a company called DoNotPay that claimed its ​“AI L...

Combatting robocalls has been and continues to be an important area of enforcement for State Attorneys General, as we have previously reported. On October 18, 2024, the Anti-Robocall Multistate Litigation Task Force (Task Force), comprised of 51 bipartisan State AGs, released a notice letter outlining concerns that a Florida-based company was ​“transmitting suspected illegal robocall traffic on be...

Last week, the FTC, by a 3-2 vote along party lines, adopted its click-to-cancel rule, which purports to make it easier to cancel gym memberships, streaming services, and the like. [We wrote about it here.] The final rule will apply across the economy to any business that offers negative option plans (e.g., subscriptions) and would provide the Commission with the ability to obtain civil penalties...

The Federal Communications Commission has announced that its new Telephone Consumer Protection Act rules related to ​“reasonable” revocation of consent will become effective on April 11, 2025. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/fcc-sets-effective-date-for-tcpa-reasonable-consent-revocation-rules Alysa Hutnik ahutnik@kelleydrye.com (202) 342-8603 www.kelleydrye.com/people/aly...

As states across the country grapple with the impacts of Hurricane Helene and Hurricane Milton, state attorneys general are reminding businesses and constituents of price gouging laws that ban certain price increases during emergencies. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/state-attorneys-general-warn-of-price-gouging-enforcement-in-wake-of-recent-natural-disasters Paul Singer...

The California Privacy Protection Agency (CPPA) has signaled it will advance rulemaking at its upcoming November 8 board meeting to place restrictions on the use of automated decision-making technology (ADMT) and impose new obligations to require businesses to conduct cybersecurity audits and risk assessments. The agency has grappled with these issues for more than two years, including soliciting...

Earlier this week, we described Texas’s new youth privacy law, the Securing Children Online Through Parental Empowerment (SCOPE) Act, and previewed that the Texas Attorney General is likely to use it to target social media platforms. And we were correct: yesterday, Texas sued TikTok under the SCOPE Act for allegedly ​“exploiting Texas children and failing to prioritize minors’ online safety and pr...

Last week, a federal court in the District of Minnesota struck down Target’s motion to dismiss a class action complaint against the company for its ​“Target Clean” line of beauty products, because the Court said it could not declare as a matter of law that the Target Clean program is incapable of deceiving a reasonable consumer. As the court put it, ​“the reasonableness of Plaintiffs’ expectations...

Gordon Ramsay is a celebrity chef, perhaps best known for his fiery temper and the harsh criticism he levels at contestants on his cooking shows. If Ramsay judges that food isn’t cooked properly, that the texture is off, or that presentation is less than perfect, he is likely to yell at the offending chef and maybe even throw the food across the room. That can make for good TV, but does it make fo...