Ad Law News and Views - February 6, 2021

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House Democrats Primed to Introduce 13(b) Legislative Fix

On Thursday afternoon, the future of the Federal Trade Commission’s enforcement authority took center stage during a House Energy and Commerce Committee hearing entitled, ​“Safeguarding American Consumers: Fighting Fraud and Scams During the Pandemic.” While the Consumer Protection and Commerce Subcommittee hearing was ostensibly focused on pandemic-related fraud, calls to clarify the agency’s ability to use Section 13(b) of the FTC Act to provide restitution dominated the discussion. For their part, House Democrats appear ready to move forward with a legislative fix – perhaps even before the Supreme Court issues its ruling on the scope of 13(b) in AMG Capital Management, LLC v. Federal Trade Commission later this year.

ICYMI: The FTC Has Civil Penalty Authority Relative To COVID-Related Advertising

As 2020 drew to a close and Congress scrambled to reach a deal to continue funding the federal government, tucked in amidst the 2124 pages of the 2021 Appropriations Bill is a new power for the FTC:  civil penalty authority for deceptive COVID-related acts and practices.  Titled the COVID-19 Consumer Protection Act (see page 2094 here)

Virginia Privacy Bill Advances / State Privacy Bills Gain Momentum

In the absence of comprehensive federal privacy law, states are following California’s lead and proposing their own privacy bills. This blog post provides an overview of three state bills that we are tracking closely in this year’s legislative session: the Washington Privacy Act (WAPA), the New York Privacy Act (NYPA), and the Virginia Consumer Data Protection Act (VCDPA). Though the proposed bills are distinct, there are similarities that largely track existing CCPA and/or GDPR requirements.

California OEHHA Explains Decision to Rescind Proposed ​“Clarifications” to Prop 65 Rules for Internet Sales; Finalizes Changes to Alcohol Sale Warnings

The California Office of Environmental Health Hazard Assessment (OEHHA) yesterday released its explanation for withdrawing proposed ​“clarifications” to the Proposition 65 regulations governing internet sales.

FTC Files First BOTS Act Cases

On Friday, January 22, 2021, the Federal Trade Commission settled charges with three ticket brokers for violating the Better Online Ticket Sales (BOTS) Act, which was passed in 2015.  These are the first case brought under the Act.  In them, the Commission alleged that three brokers ​“used automated software to illegally buy up tens of thousands of tickets for popular concerts and sporting events, then subsequently made millions of dollars reselling the tickets to fans at higher prices.”  According to the Commission, the brokers acquired 150,000 tickets ​“using automated ticket-buying software to search for and reserve tickets automatically, software to conceal their IP addresses, and hundreds of fictitious Ticketmaster accounts and credit cards to get around posted event ticket limits.”  Judgments against the three amounted to about $31 million of which the defendants will pay $3.7 million.  The Commission sued both the companies and the individuals who ran the companies.

Consumer Litigation Under the CCPA: A Year in Review

Private consumer litigation in 2020 was significantly impacted by the California Consumer Privacy Act (CCPA) which took effect on January 1, 2020.  Whether asserted as a standalone CCPA violation claim or as a predicate act for other causes of action, including under California’s Unfair Competition Law (“UCL”), the volume of CCPA litigation has not abated.  While some claims have already been resolved (by motion or agreement), others are just hitting their litigious stride and with a full year of experience, certain trends have started to develop.

CCPA Litigation Round-Up: Q3 & Q4 2020

It has been a full year since the California Consumer Privacy Act (CCPA) took effect at the top of 2020. In the cases filed in the second half of the year, the complaints more frequently assert a violation of the CCPA as a standalone cause of action, though it remains common for a CCPA violation to be asserted as a predicate to support a separate cause of action, such as a violation of California’s Unfair Competition Law (UCL).

Up & Up & Out. Structure/Function Claims Preempted by the FDCA

Last week, in a substantial win for the dietary supplement industry, the Ninth Circuit Court of Appeals upheld the Northern District of California’s grant of summary judgment to Target, ruling that state law false advertising challenges to permissible structure/function claims are preempted by the Federal Food, Drug and Cosmetic Act (FDCA).

Biden Taps Rohit Chopra, Current FTC Commissioner and Vocal Proponent of Aggressive Enforcement, to Lead CFPB

Things are about to change dramatically at the CFPB.  President-elect Joe Biden today nominated Rohit Chopra, a current commissioner at the Federal Trade Commission and long-time proponent of aggressive enforcement, to serve as director of the Consumer Financial Protection Bureau.

Many states are considering comprehensive privacy legislation in the absence of a federal law. We are 
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