September 21, 2022

2022 Back to School Issue

Summer vacation is over and Ad Law News and Views is back!

On this, the 21st night of September, summer hours are over, the kids are back at school, and many of us are back working in the office more often than not. It’s time to hunker back down and get busy again. Which means we are back with our annual “Back to School” issue.


Ad Law Access App

You may have missed the launch of the Ad Law Access app earlier this year. The app is a one-stop portal that provides updates and analysis on advertising, marketing, and privacy/data security law. It is available as a free download in the Apple App Store and Google Play, and can be used on iPhone, iPad, and Android devices. The app builds on the other advertising and privacy resources produced by the group:

You can find all of these resources and more on our Linktree.


Court Holds that Website Accessibility Doesn’t Require 100% Compliance

If you’ve ever received a demand letter alleging that your company’s website isn’t accessible to the blind or visually-impaired, it’s likely that the claimant’s attorney attached a report outlining a number of accessibility errors on the website. That’s not surprising because most – if not all – major websites are likely to have some errors. But while some errors may affect a blind or visually-impaired person’s ability to navigate the website, others do not. One question that hasn’t been previously addressed by any court, though, is whether 100% accessibility is necessary to avoid liability under the ADA. A California district court recently opined that it is not. This is complicated by the fact that there are no government issued regulations relating to what standard of accessibility should even be considered. By default, the few courts that have required that a company ensure that its website is accessible to blind or visually-impaired people using assistive technology have looked to the World Wide Web Consortium’s Web Content Accessibility Guidelines.

H&M Sued Over Sustainability Claims

Sustainability continues to be a hot topic in the fashion industry, both in ads and in lawsuits related to those ads. Last month, a plaintiff filed a proposed class action against H&M arguing that the company makes various false claims about the sustainability of its products. The lawsuit seems to be prompted by a June 28, 2022 article published in Quartz with the results of an investigation which allegedly demonstrated that “H&M showed customers environmental scorecards for its clothing that were misleading and, in many cases, outright deceptive.”

The FTC’s Privacy Rulemaking: Broad and Far-Reaching, but Unlikely to Lead to a Rule Anytime Soon

On August 11, the FTC finally launched its “commercial surveillance and data security” rulemaking after many months of hype and speculation about the FTC’s ability to address consumer privacy through its “Mag-Moss” rulemaking authority. It did so by releasing (by 3/2 vote) an Advanced Notice of Proposed Rulemaking (ANPR) – the first step in a Mag-Moss rulemaking – and holding a press conference featuring Chair Khan, Commissioners Slaughter and Bedoya, and senior FTC staff.

California Attorney General’s First CCPA Settlement Sends Strong “Signals” About Do Not Sell Enforcement

Warning that “[t]here are no more excuses,” California Attorney General on August 24, announced the first public settlement under the California Consumer Privacy Act (CCPA). The settlement order, which the court approved on the same day, requires beauty-product retailer Sephora, Inc., to pay a $1.2 million civil penalty to resolve allegations that the company failed to disclose to consumers that it was selling their personal information, and failed to process consumer requests to opt-out of sale by either offering a “Do Not Sell My Personal Information” link or via user-enabled global privacy controls.  The order also requires Sephora to implement, assess, and report on a CCPA compliance program, in addition to other injunctive terms.

CPRA Update: What is a “Contractor?”

The California Privacy Rights Act (CPRA), effective January 1, 2023, adds “contractors” to the list of entities that a business may entrust with customer data.  So what is a “contractor?”  And how are “contractors” different from other entities described by California privacy law, such as “service providers” or “third parties?”

NAD Advises Better Disclosures for #1 Claim

Twilio advertises that its customer data platform is the “#1 CDP” and discloses that the claim is based on 2020 market share, as measured by the International Data Corporation. Adobe challenged the claim, arguing, in part, that the 2020 IDC Report doesn’t reflect the current landscape and, even if it did, that Twilio’s disclosures were insufficient. NAD’s analysis includes tips for anyone looking to make #1 claims. Urges Investigation into Hello Fresh recently announced that it had filed complaints with the FTC and the Connecticut Department of Consumer Protection, urging them to investigate Hello Fresh’s marketing practices related to a campaign advertising “free” meals in order to encourage consumers to sign up for a subscription. The complaints touch on a number of issues we post about frequently, including automatic renewals, “dark patterns,” and the use of influencers. Here are some of the highlights.

NAD Combs Through Saturday Night Hair Claims

My law firm picture was taken on a Tuesday morning, but I’ve always lamented that the photographer wasn’t available to take it on a weekend, which would have given me a better opportunity to showcase my Saturday night hair. In case you think that’s something only I worry about, take note that questions related to the ease of creating such an enviable hair style recently made their way into an advertising dispute between Dyson and SharkNinja.




September 29, 2022

Operationalizing Adtech Privacy Compliance: Understanding the IAB Multi-State Privacy Agreement

Click here to register

Strategies for Protecting Artificial Intelligence through Intellectual Property

Register here.

October 12, 2022

2022 Election Outlook: An In-Depth Analysis of This Year's House and Senate Races

Register here.