Ad Law News and Views - February 25, 2023

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Welcome back to Ad Law News and Views.

2023 started out as a busy year for privacy teams balancing legal obligations and technology requirements. Partner, Aaron Burstein hosted our \“Digital Advertising Privacy Program Priorities and Tech Must-Knows for 2023\” program, along with Ketch’s Jonathan Joseph, and IAB’s Tony Ficarrotta, which focused on challenging obligations and trends relevant to digital advertising when it comes to U.S. data privacy compliance across California (CPRA), Virginia, Connecticut, Colorado, and Utah. Click here for a recording of the webinar.

Kelley Drye Privacy Litigation partners Lauri Mazzuchetti and Whitney Smith, and Privacy & Information Security chair Alysa Hutnik hosted our \“2023 Privacy Litigation Trends\” webinar where they examined privacy litigation trends and steps companies can take to mitigate the risk of being a target. A recording of this program can be found here.

Our State Attorneys General practice started 2023 with the first installment of our State AG Consumer Protection Webinar Series. Partner Paul Singer, Special Counsel Abby Stempson and Senior Associate Beth Chun, along with Tennessee Attorney General’s Office -- Lacey Mase, Chief Deputy Attorney General and Jeff Hill, Executive Counsel, hosted \“State Attorneys General Consumer Protection Priorities for 2023\” discussing state consumer protection matters that will be of importance in 2023, such as fake reviews, clear and accurate pricing, and dark patterns. 

Be sure to register for our State AG Consumer Protection Webinar Series. See below for more information on topics, dates, and registration details.

UPCOMING EVENT

State AG Consumer Protection Webinar Series

Join Kelley Drye’s State Attorney General Ad Law Team for the 2023 State Attorney General Webinar Series, which includes guests from attorney general offices (AGOs) from around the country.  The first portion of each webinar will focus on the guest AGO’s state consumer protection authority including some of the unique and varied aspects of their consumer laws, and the second portion will be a topical discussion that will vary month to month, being driven by the priorities of the guest AGO. Please see below for the next few month’s webinars, and if you missed the January webinar that featured the Tennessee Attorney General’s Office, you can review the announcement and an article about the webinar. Sign up, invite a colleague, and hear from attorney general offices from around the country.

North Carolina Attorney General’s Office – Consumer Protection Public Health Initiatives

February 28, 2023”,“3:30 PM ET”,“Webinar 
Register
The North Carolina Attorney General’s Office is very active in the public health space, using traditional consumer protection laws to protect people’s health and safety.  Through the leadership of Attorney General Josh Stein, a former Consumer Protection Division Chief himself, the office has lead the country in many public health matters such as opioids, vaping, and children’s mental health. Please join us for a webinar featuring special guest speakers from this office -- Daniel Mosteller, Deputy General Counsel and Kevin Anderson, Senior Deputy Attorney General and Director, Consumer Protection Division, as they join Kelley Drye State Attorneys General practice Co-Chair Paul Singer, Special Counsel Abby Stempson, and Senior Associate Beth Chun for discussion and practical information on the North Carolina Attorney General’s Office and its state consumer protection laws, as well as public health initiatives from the state attorney general perspective.

What to Expect in 2023 FinTech and Financial Services Regulation

March 8, 2023”,“12:30 PM ET”,“Webinar 
Register
Join members of Kelley Drye’s Advertising, Privacy, and Financial Services teams for an overview of hot topics and issues to watch for in 2023 in fintech and financial services.
Both the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) have set an aggressive agenda for 2023 that could fundamentally alter the regulatory landscape governing fintech and financial services providers. In pushing to expand the boundaries of third-party liability, the agencies are looking beyond traditional financial services providers to retailers, social media and tech platforms, lead generators, data aggregators, and others. The efforts come amidst simultaneous challenges to the fundamental structure and authority of each agency.
Please join us for a webinar with Partners Matt Luzadder and Donnelly McDowell and two of Kelley Drye’s newest team members with significant financial services and privacy experience at the FTC, Partner Kate White and Special Counsel Ioana Gorecki. 
The webinar will cover a host of hot topics in advertising and privacy, including but not limited to:

• FTC and CFPB priorities and pending challenges to each agency’s authority and structure
• Expanded third-party liability for service providers
• “Junk fees” and ​“dark patterns”
• Financial privacy and data access portability
• Discriminatory lending and credit practices
• Crypto and blockchain developments

 

Ohio Attorney General’s Office - Topic to be Announced

March 28, 2023”,“3:00 PM ET”,“Webinar
Register
Guest Speakers:

• Attorney General Dave Yost
• Melissa Wright, Chief, Consumer Protection Section

More Information available soon on the Kelley Drye website.

Connecticut Attorney General’s Office – Privacy Enforcement and the Connecticut Data Privacy Act

April 25, 2023”,“3:00 PM ET”,“Webinar
Register
Guest Speakers:

• Attorney General William Tong
• Michele Lucan, Deputy Associate Attorney General and Chief of the Privacy Section

More Information available soon on the Kelley Drye website.

IN THE NEWS AND LATEST UPDATES

Get these and other stories in real time when you subscribe to the Ad Law Access blog here or visit the Advertising and Privacy Law Resource Center here. 

Twitter Is The First Major Social Media Platform to Expressly Allow Cannabis Advertising

Twitter became the first social media platform to expressly allow cannabis advertising. Read more about Twitter’s U.S. ad policy here.

NAD Finds Advertiser Can’t Support Aspirational Net Zero Claims

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 good intentions alone.

Is the FTC a ​“Regulator”? It Sure Seems to be Moving in that Direction

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 CFPB, Chair Khan is certainly pushing the FTC in that direction. Indeed, the agency’s rulemaking activity has dramatically increased under her tenure. 

ECOA and Beyond: Recent Updates and Developments in Discrimination Enforcement

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.

FTC and State AGs Can Continue Joint Case Over Fake Reviews

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 listed on their Roomster platform are real, available, and verified.” At the same time, the regulators announced a settlement with an individual who allegedly sold Roomster many of the fake reviews.

Food + Personal Care Industry Insights – January 2023

Welcome to the 2023 inaugural issue of our newsletter, where we explore litigation and regulatory trends and developments from around the food, dietary supplement, and personal care industries.  Like most everybody else, we’ve given up on our new year’s resolutions, so let’s go to the food court.

State AGs and Consumer Protection: What We Learned from….Tennessee

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 salient issues such as dark patterns, autorenewal concerns, and/or data security and privacy, but those priorities will continue to evolve through discussions at the forums of their main national organizations.

Influencer’s Long Lashes Could Raise Ad Law Issues

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 changed [her] life” and figuratively just ignited a battle on the internet.

FTC Challenges Half-Baked ​“Made in USA” Claims

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 demand for its products and it had to look for options outside the country.

FCC Seeks Comments on Updates to CPNI Breach Reporting Rule

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 obligations and accelerate the timeframe to notify customers after a data breach involving telephone call detail records and other CPNI.  The FCC cites ​“an increasing number of security breaches of customer information” in the telecommunications industry in recent years and the need to ​“keep pace with today’s challenges” and best practices that have emerged under other federal and state notification standards as reasons to update the Rule.

Regulators Continue to Focus on ​“Dark Patterns” in Negative Option Marketing

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 practices they deem ​“dark patterns,” and continue to focus on the area.   

The FTC’s Proposal to Ban Noncompetes is on Shaky Legal Ground

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 practical questions that the FTC’s proposal raises.  

FTC Proposed Ban of Noncompetes: Practical Guidance For Employers

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 one of the most substantial regulatory actions facing employers right now? And what should businesses do to prepare? Kelley Drye’s Labor and Employment practice shares practical guidance to help employers prepare for a world without noncompetes.

Two Firsts for FTC Civil Penalty Enforcement: ROSCA for Automatic Renewals and Penalty Offense Authority for Money-Making Claims

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 the opportunity may ​“quite literally transform your life.”

New California Law Governing Commercial Co-Ventures Now (Partly) In Effect

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.

Using Domestically Sourced Recycled Content? Look Beyond the Recycling Process before Claiming It’s ​“Made in USA”

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 Staff Advisory Opinion the Staff declined to consider the recycling process as a ​“new life cycle” and disregard the origin of the jewelry returned for recycling.

FTC Proposes to Regulate Virtually Every Labor Relationship in the United States

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.    

CFPB Tackles Fine Print in Consumer Financial Contracts

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 protections.”]