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IN THE NEWS AND LATEST UPDATES
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The Supreme Court’s unanimous ruling in
AMG Capital Management LLC v. FTC was the subject of a panel discussion during the ABA Spring Meeting, and a recent article in
FTCWatch:
-
John Villafranco Featured in FTCWatch
You can read the full story
here. (May require a subscription)
Q: It has been nearly a year since the Supreme Court’s decision in AMG Capital Management, LLC v. FTC foreclosed the FTC’s ability to pursue monetary remedies under Section 13(b) of the FTC Act. How has AMG affected the FTC’s enforcement program, particularly in consumer protection cases?
As we’ve
discussed in recent posts, State Attorneys General often take positions on important consumer protection policy issues through a
joint letter from the National Association of Attorneys General, often referred to as a “NAAG letter.” This leads to the inevitable question – what is NAAG and what does it do? As former State Assistant Attorneys General, we often find ourselves answering that question, and can shed some light into this organization that has often perplexed onlookers.
Companies that make environmental or “green” claims generally refer to the FTC’s Green Guides for guidance on what they can and cannot say and what substantiation they need. At this point, though, the Green Guides are more than ten years old and they don’t clearly answer many of the questions advertisers have today.
Although the FTC has indicated that it plans to review and update the Green Guides, we don’t know when a new version will be out.
ICYMI, the White House’s
2023 budget proposal includes
$490 million for the FTC, reflecting a substantial increase ($139 million) over the FTC’s current budget of $351 million. To support this proposal, the FTC recently submitted a
budget justification to Congress providing details about the need for the increase and how the funds would be spent. Our brief review of the FTC’s submission turned up some interesting insights:
Last year, Prose – a company that makes customized haircare products – brought an NAD challenge against a competitor, Function, over Function’s claims that it had over 110,000 5-star product reviews. Shortly after that, Function filed a challenge against Prose over Prose’s claims that it had over 192,000 5-star product reviews. (You can read about those cases
here and
here.) NAD recently reopened the second challenge, and the new decision includes additional insights into how NAD examines reviews.
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WEBINAR REPLAYS
In the absence of a federal privacy law, privacy has been at the forefront of many states’ legislative sessions this year:
- Utah is poised to be the fourth state to enact comprehensive privacy legislation
- Florida came close to passing legislation when the State House advanced privacy legislation by a significant margin
- Other state legislatures have privacy bills on their calendars
Against this backdrop, state attorneys general continue to initiate investigations into companies’ privacy practices, and state agencies continue to advance privacy rulemakings under existing law.
Under Chair Lina Khan, the Federal Trade Commission has announced an aggressive privacy agenda, which is unfolding on the enforcement, regulatory, and policy fronts. In recent enforcement actions, the FTC has sought stringent remedies, including data deletion, bans on conduct, notices to consumers, stricter consent requirements, individual liability, and significant monetary relief based on a range of creative theories. The FTC has also announced that it intends to launch a rulemaking to limit "surveillance advertising." The FTC has also issued two rounds of guidance on its Health Breach Notification Rule -- which has never been the subject of an FTC enforcement action and is the subject of an open rulemaking proceeding.
Consumer protection enforcement efforts are expected to increase dramatically this year. Recent pronouncements from State Attorneys General around the country bring privacy, big tech and the misuse of algorithms, and basic advertising related frauds into particular scrutiny.
Privacy compliance is a daunting task, particularly when the legal and tech landscape keeps shifting. Many companies are still updating their privacy compliance programs to address CCPA requirements, FTC warnings on avoiding dark patterns and unauthorized data sharing, and tech platform disclosure, consent, and data sharing changes. But in the not too distant future, new privacy laws in California, Colorado, and Virginia also will go into effect. Addressing these expanded obligations requires budget, prioritizing action items, and keeping up to date on privacy technology innovations that can help make some tasks more scalable.
Find older webinar replays and more in the
Advertising and Privacy Law Resource Center.