Ad Law News and Views - February 10, 2022
[“Kelley Drye
Kelley Drye
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.
As we continue to watch the slow motion, often circular efforts in Congress to develop and enact comprehensive privacy legislation, federal action on privacy could end up coming from some surprising places.
If you’re among the over 40% of U.S. consumers who vowed to change how you eat in the new year, fitting into pants that don’t have elastic waistbands may be one of numerous motivators. For many consumers, climate considerations are increasingly among the dietary priorities, and 2022 looks likely to bring plates filled with climate-friendly chicken or one of the many plant-based-protein options, which have grown in market share over 50% in the last two years. As with all environmental claims, though, precise claim language and adequate disclosures are paramount. One enforcement matter from across the pond is a helpful reminder of these ad law basics.
Last week, the Attorney General Alliance hosted a seminar to address the Colorado Privacy Act (CPA)—what it does and how to prepare for its July 1, 2023 effective date. The seminar featured a discussion with the bill’s sponsors, legal experts, practitioners, and the Attorneys General for Colorado and Wyoming. As the third state to enact a comprehensive privacy law in the United States, it looks like Colorado stakeholders have considered the Virginia Consumer Data Protection Act (VCDPA) and the California Consumer Privacy Act (CCPA), and they are paving a new path for tackling privacy and data security issues not addressed by the plain text of the statute.
Yesterday, the Senate Commerce Committee’s Subcommittee on Consumer Protection, Product Safety and Data Security held its second hearing in less than a year on COVID-19 fraud, price gouging, and related enforcement efforts. Groundhog Day Eve was a fitting date for the hearing, as the Federal Trade Commission – this time through Bureau of Consumer Protection Director Samuel Levine – again called on Congress to pass legislation to clarify the agency’s Section 13(b) authority in the wake of the Supreme Court’s AMG decision.
State and federal regulators have definitely put a new emphasis on combatting so-called “dark patterns” – a term attributed in 2010 to user-experience expert Harry Brignull, who runs the website darkpatterns.org. Consider some of the actions of 2021: In April, the FTC hosted a workshop dedicated to dark patterns. In July, Colorado passed the Colorado Privacy Act that specifically defines and prohibits the use of dark patterns. In October, the FTC issued a policy statement warning against the use of dark patterns in subscription services. And just last week, a bipartisan group of four states sued Google alleging in part violations of state law for Google’s use of dark patterns in obtaining consumers’ consent to collect geolocation information. But other than a catchy name, is there really anything new about the types of conduct that state and federal officials are calling illegal? This two-part blogpost will take a closer look at that question.
In Part One of this discussion, we provided background on the concept of dark patterns and analyzed some recent examples from State AG enforcement. We concluded that, in alleging dark patterns, State AGs are building primarily on existing precedent governing deception and unfairness but also are trying to push the envelope. Whereas earlier precedent mostly focused on false and hidden information, some of the State’s current allegations lean more towards coercion and the impairment of voluntary action.
On January 26, Minnesota Federal District Court Judge John Tunheim dismissed a pending action for declaratory relief brought by WinRed, Inc., seeking to enjoin an ongoing consumer protection investigation brought by the Attorneys General of Minnesota, New York, Connecticut, and Maryland. This decision highlights two important points regarding State Attorneys General (AGs): 1) their consumer protection laws are rarely found to be subject to broad federal preemption, and 2) they often can’t be hauled into other states, even if operating as a multistate.
Last week, we wrote about the FTC’s first case involving a company’s failure to post negative reviews. Just a few days later, the FTC reached a $3.5 million settlement with Hubble Contacts. Although much of the FTC’s complaint in the Hubble case alleges violations of the Contact Lens Rule, the FTC also alleged that Hubble engaged in misleading practices related to consumers reviews. The latter should catch your eye, even if you don’t work in the vision industry.
Companies often ask us whether they can highlight positive reviews without mentioning negative ones. The good news is that there are ways to do that, but when the conversation veers from highlighting positive reviews to suppressing negative ones, things get trickier. This afternoon, the FTC announced its first case involving a company’s failure to post negative reviews, and the settlement helps illustrate what companies can and cannot do.
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.
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.
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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.
A New Federal Privacy Law Could Come from an Unexpected Place
As we continue to watch the slow motion, often circular efforts in Congress to develop and enact comprehensive privacy legislation, federal action on privacy could end up coming from some surprising places.
UK’s ASA Roasts Oatly’s Climate-Friendly Claims
If you’re among the over 40% of U.S. consumers who vowed to change how you eat in the new year, fitting into pants that don’t have elastic waistbands may be one of numerous motivators. For many consumers, climate considerations are increasingly among the dietary priorities, and 2022 looks likely to bring plates filled with climate-friendly chicken or one of the many plant-based-protein options, which have grown in market share over 50% in the last two years. As with all environmental claims, though, precise claim language and adequate disclosures are paramount. One enforcement matter from across the pond is a helpful reminder of these ad law basics.
ICYMI: Momentum Continues with the Colorado Privacy Act
Last week, the Attorney General Alliance hosted a seminar to address the Colorado Privacy Act (CPA)—what it does and how to prepare for its July 1, 2023 effective date. The seminar featured a discussion with the bill’s sponsors, legal experts, practitioners, and the Attorneys General for Colorado and Wyoming. As the third state to enact a comprehensive privacy law in the United States, it looks like Colorado stakeholders have considered the Virginia Consumer Data Protection Act (VCDPA) and the California Consumer Privacy Act (CCPA), and they are paving a new path for tackling privacy and data security issues not addressed by the plain text of the statute.
Senate Spars with FTC BCP Director Sam Levine over FTC Enforcement, Surprisingly from Both Sides
Yesterday, the Senate Commerce Committee’s Subcommittee on Consumer Protection, Product Safety and Data Security held its second hearing in less than a year on COVID-19 fraud, price gouging, and related enforcement efforts. Groundhog Day Eve was a fitting date for the hearing, as the Federal Trade Commission – this time through Bureau of Consumer Protection Director Samuel Levine – again called on Congress to pass legislation to clarify the agency’s Section 13(b) authority in the wake of the Supreme Court’s AMG decision.
Dark Patterns: A New Legal Standard or Just a Catchy Name? (Part One)
State and federal regulators have definitely put a new emphasis on combatting so-called “dark patterns” – a term attributed in 2010 to user-experience expert Harry Brignull, who runs the website darkpatterns.org. Consider some of the actions of 2021: In April, the FTC hosted a workshop dedicated to dark patterns. In July, Colorado passed the Colorado Privacy Act that specifically defines and prohibits the use of dark patterns. In October, the FTC issued a policy statement warning against the use of dark patterns in subscription services. And just last week, a bipartisan group of four states sued Google alleging in part violations of state law for Google’s use of dark patterns in obtaining consumers’ consent to collect geolocation information. But other than a catchy name, is there really anything new about the types of conduct that state and federal officials are calling illegal? This two-part blogpost will take a closer look at that question.
Dark Patterns: A New Legal Standard or Just a Catchy Name? (Part Two)
In Part One of this discussion, we provided background on the concept of dark patterns and analyzed some recent examples from State AG enforcement. We concluded that, in alleging dark patterns, State AGs are building primarily on existing precedent governing deception and unfairness but also are trying to push the envelope. Whereas earlier precedent mostly focused on false and hidden information, some of the State’s current allegations lean more towards coercion and the impairment of voluntary action.
(Un) Check Your Checkboxes: States not Preempted by FECA
On January 26, Minnesota Federal District Court Judge John Tunheim dismissed a pending action for declaratory relief brought by WinRed, Inc., seeking to enjoin an ongoing consumer protection investigation brought by the Attorneys General of Minnesota, New York, Connecticut, and Maryland. This decision highlights two important points regarding State Attorneys General (AGs): 1) their consumer protection laws are rarely found to be subject to broad federal preemption, and 2) they often can’t be hauled into other states, even if operating as a multistate.
FTC Continues to Focus on Incentivized Reviews
Last week, we wrote about the FTC’s first case involving a company’s failure to post negative reviews. Just a few days later, the FTC reached a $3.5 million settlement with Hubble Contacts. Although much of the FTC’s complaint in the Hubble case alleges violations of the Contact Lens Rule, the FTC also alleged that Hubble engaged in misleading practices related to consumers reviews. The latter should catch your eye, even if you don’t work in the vision industry.
FTC Settles with Company Over Failure to Post Negative Reviews
Companies often ask us whether they can highlight positive reviews without mentioning negative ones. The good news is that there are ways to do that, but when the conversation veers from highlighting positive reviews to suppressing negative ones, things get trickier. This afternoon, the FTC announced its first case involving a company’s failure to post negative reviews, and the settlement helps illustrate what companies can and cannot do.
Webinar Replay: 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.
Webinar Replay: 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.
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