Ad Law News and Views - April 2, 2022
[“American Bar Association
Stafford Conferences
IAPP Global Privacy Summit 2022
IAPP Global Privacy Summit 2022
State Privacy Law Summit: Unpacking Brand and Agency Privacy Obligations
IAB
Kelley Drye
California Lawyers Association
NACHA
- 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.
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.
If you follow the FTC, you likely saw its widely-covered filing this week alleging that Intuit, the marketer of TurboTax, has deceptively claimed for years that its online tax preparation services are “free,” when they’re free for only a subset of taxpayers. The FTC’s case parallels two class actions already underway; some state AGs are reportedly investigating the company as well.
This month’s update kicks off spring with a Best in Show throwback ad comparing dog flea and tick medication, pivots to claims for survivalist ready-to-eat meals (don’t even try to act like you saw that coming), highlights FDA’s recently-issued voluntary recall guidance, provides a food court update on the latest ingredient class actions and cleans up with a pet food win in the Tenth Circuit on “fresh” and “regional” claims. Call it March madness because there’s a lot going on. Let’s get started…
NAD recently announced a decision in a challenge that Charter brought against T-Mobile for its home internet service. The decision covers a lot of ground and is worth reading if you work in the telecom space. But for the purposes of this post, we’re going to focus more narrowly on one specific issue that spans industries.
Last week, the New York Attorney General announced that Fareportal had agreed to pay $2.6 million to end an investigation over its use of “dark patterns” to manipulate consumers into booking flights and hotel accommodations. As we’ve noted in previous posts, “dark patterns” is arguably a new name to describe practices that have been around for a while, so it helps to see some examples of what the AG alleged Fareportal did.
As we’ve discussed here, there’s bipartisan momentum in Congress to enact stronger privacy protections for kids and teens – and specifically, tools that would enable minors and their parents to limit algorithms and online content that fuel self-harm and addictive behaviors. These efforts, reflected in several federal bills (see here and here) and now in a California bill too, build on months of testimony by a social media insider and are modeled in large part on the UK’s Age Appropriate Design Code.
Most NAD challenges are initiated by competitors, but NAD can also initiate its own inquiries as part of its mission to independently monitor national ads for truthfulness and accuracy. Over the past few months, NAD has initiated inquiries into green claims made by Georgia-Pacific and Everlane. Last week, NAD announced a decision involving an inquiry into various green claims made by Chipotle, once again signaling that these types of claims are a priority.
UPCOMING EVENTS
2022 Antitrust Law Spring Meeting
American Bar Association
April 5, 2022”,“Speaking Engagement
Register
Mitigating Third-Party Risk in Technology Contracts
Stafford Conferences
April 5, 2022”,“Speaking Engagement
Register
Privacy & Fairness Considerations for ML-Powered Recommender Systems
IAPP Global Privacy Summit 2022
April 10, 2022”,“Speaking Engagement
Register
Privacy and the Data Revolution
IAPP Global Privacy Summit 2022
April 12, 2022”,“Speaking Engagement
Register
State Privacy Law Summit: Unpacking Brand and Agency Privacy Obligations
(in NYC) followed by Happy Hour
IAB
April 14, 2022”,“In-Person
Register
Solving the China Challenge: Practical Advice for Engaging in Trade and Investment with China
Kelley Drye
April 19, 2022”,“Webinar
Register
CCPA Enforcement Trends
California Lawyers Association
April 26, 2022
Register
Executive Series: Moving from a Microscope to a Telescope - An In-House View from Ex-Regulators
NACHA
May 2, 2022”,“Speaking Engagment
Register
WEBINAR REPLAYS
Privacy Priorities for 2022: Tracking State Law Developments
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.
Privacy Priorities for 2022: FTC
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.State Attorney General Consumer Protection Priorities for 2022
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 Priorities for 2022: Legal and Tech Developments to Track and Tackle
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.
LATEST UPDATES
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FTC to Intuit: “Free” Not “Free” for Most Taxpayers
If you follow the FTC, you likely saw its widely-covered filing this week alleging that Intuit, the marketer of TurboTax, has deceptively claimed for years that its online tax preparation services are “free,” when they’re free for only a subset of taxpayers. The FTC’s case parallels two class actions already underway; some state AGs are reportedly investigating the company as well.
Food and Personal Care Product Litigation and Regulatory Highlights
This month’s update kicks off spring with a Best in Show throwback ad comparing dog flea and tick medication, pivots to claims for survivalist ready-to-eat meals (don’t even try to act like you saw that coming), highlights FDA’s recently-issued voluntary recall guidance, provides a food court update on the latest ingredient class actions and cleans up with a pet food win in the Tenth Circuit on “fresh” and “regional” claims. Call it March madness because there’s a lot going on. Let’s get started…
How Many is Many?
NAD recently announced a decision in a challenge that Charter brought against T-Mobile for its home internet service. The decision covers a lot of ground and is worth reading if you work in the telecom space. But for the purposes of this post, we’re going to focus more narrowly on one specific issue that spans industries.
Fareportal to Pay $2.6 Million Over Dark Patterns
Last week, the New York Attorney General announced that Fareportal had agreed to pay $2.6 million to end an investigation over its use of “dark patterns” to manipulate consumers into booking flights and hotel accommodations. As we’ve noted in previous posts, “dark patterns” is arguably a new name to describe practices that have been around for a while, so it helps to see some examples of what the AG alleged Fareportal did.
Age Appropriate Design Codes – Well Meaning, but Do They Make for Good Law?
As we’ve discussed here, there’s bipartisan momentum in Congress to enact stronger privacy protections for kids and teens – and specifically, tools that would enable minors and their parents to limit algorithms and online content that fuel self-harm and addictive behaviors. These efforts, reflected in several federal bills (see here and here) and now in a California bill too, build on months of testimony by a social media insider and are modeled in large part on the UK’s Age Appropriate Design Code.
NAD Continues to Focus on Green Claims
Most NAD challenges are initiated by competitors, but NAD can also initiate its own inquiries as part of its mission to independently monitor national ads for truthfulness and accuracy. Over the past few months, NAD has initiated inquiries into green claims made by Georgia-Pacific and Everlane. Last week, NAD announced a decision involving an inquiry into various green claims made by Chipotle, once again signaling that these types of claims are a priority.
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