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.

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How the Utah Consumer Privacy Act Stacks Up Against Other State Privacy Laws

As companies wait to see whether the Utah Consumer Privacy Act (UCPA) becomes the fourth comprehensive state privacy law, we are providing an overview of some of the Act’s key provisions – and how they depart from comprehensive privacy laws in California, Colorado, and Virginia.

After Remington Settlement, Attorneys General Aim To Press Forward With Consumer Protection Investigations of Firearms Manufacturers

Remington recently agreed to a groundbreaking $73 million settlement of claims brought by families of Sandy Hook school shooting victims. Notably, the plaintiffs secured this settlement by deploying consumer protection claims, which are exempted from the otherwise broad immunity provided to firearm manufacturers under the Protection of Lawful Commerce in Arms Act (“PLCAA”).

Lina Khan’s Privacy Priorities – Time for a Recap

Rumors suggest that Senator Schumer is maneuvering to confirm Alvaro Bedoya as FTC Commissioner sooner rather than later, which would give FTC Chair Khan the majority she needs to move forward on multiple fronts. One of those fronts is consumer privacy, for which Khan has announced ambitious plans (discussed here and here) that have stalled for lack of Commissioner votes. With Bedoya potentially on deck, now seems like a good time to recap those plans, as they might provide clues about what’s in the pipeline awaiting Bedoya’s vote. We focus here on three priorities Khan has emphasized in statements and interviews since becoming Chair. Continue Reading

Did the Other Shoe Drop? Another Class Action Against New Balance for its “Made in USA” Claims

The FTC regularly investigates Made in USA claims, but private actions have been less frequent. New Balance, however, has faced at least two class action lawsuits alleging it falsely advertises its footwear products as “Made in the USA.” The most recent complaint , proposing a nationwide class, was filed in the U.S. District Court for the District of Massachusetts and alleges violations of California’s False Advertising Law, Unfair Competition Law, and Consumers Legal Remedies Act, as well as fraud and breach of warranty. New Balance has filed a motion to dismiss, asserting that plaintiffs are trying to re-litigate the same legal theories and the same conduct involved in a case that New Balance previously settled. In the previous case, without admitting liability, New Balance agreed to take additional steps (operative by the 2019 settlement date) to disclose that its shoes have “domestic value of 70% or greater” and to pay $750,000.

California AG’s First CCPA Opinion Takes a Broad View of the Right to Access Inferences

In the first formal written opinion interpreting CCPA compliance obligations, California Attorney General Rob Bonta concludes that the CCPA grants consumers the right to know and access internally generated inferences that businesses generate about them, but that the CCPA does not require businesses to disclose trade secrets.

Sweepstakes Mishap Hastens Company’s Downfall

Artesian Builds makes customized computers, with a focus on products for gamers and streamers on platforms such as YouTube and Twitch. Like many companies, Artesian uses brand ambassadors to help promote its products. As part of its ambassador program, Artesian offered participants opportunities to earn credits toward future purchases and chances to win computers during monthly sweepstakes.

Buy American Final Rule Ups the Domestic Content Ante

Our colleagues have just published an advisory that summarizes recent amendments made by the Federal Acquisition Regulation (FAR) Buy American Act requirements. The amendments implement the Biden Administration’s Executive Order “Ensuring the Future Is Made in all of America by All of America’s Workers.” See the advisory for the full details.

Unauthorized Blockchain Domain Names: What’s a Brand to Do?

Non Fungible Tokens (“NFTs”) are very “on trend” and many brands are finding ways to use them to the benefit of their businesses. Blockchain technology also presents new challenges with respect to the enforcement of intellectual property rights. One particular challenge is the creation of blockchain domain names.

Georgia AG’s AVC with Rent-A-Center is a Lesson in State Authority

In late January, Georgia Attorney General Chris Carr reached a settlement with Rent-A-Center regarding a variety of alleged deceptive practices in its rent-to-own business, including in its debt collection and general disclosure practices. Maybe you’re thinking, “I’m not in the rent-to-own business, so why is this case important to me?” AG Carr’s settlement, which took the form of an Assurance of Voluntary Compliance (AVC), includes many important takeaways that you should think about no matter what industry you may be in, especially if you operate in multiple states. And with State AG consumer protection enforcement expected to increase in 2022 – knowing how AGs might approach an investigation is more important than ever.

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Ad Law News and Views - March 19, 2022

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