Welcome back to Ad Law News and Views.
Be sure to register for our upcoming events, Privacy, Health and Pixels - What You Need to Know Now and the next installment in our State AG Consumer Protection Webinar Series: Connecticut Attorney General’s Office - Privacy Enforcement and the Connecticut Data Privacy Act.
See below for more information on topics, dates, and registration details.
UPCOMING EVENTS
Wednesday, April 19, 2023 at 12:00 pm ET
Privacy, Health, and Pixels – What You Need to Know NowDigital advertising, analytics, and health/wellness-related personal information are very much in the news, with increased scrutiny and enforcement by the Federal Trade Commission (FTC), the Department of Health and Human Services (HHS), requirements under the new state privacy laws, and a wave of lawsuits and demand letters by litigants using wiretap laws tied to third-party pixel tracking.
Please join us for this timely webinar discussion about these recent developments, and what they might mean for business practices going forward (even outside the health space). Our roundtable discussion will include Kelley Drye’s Privacy & Information Security chair Alysa Hutnik, Advertising and Marketing Law practice chair Laura VanDruff, and Privacy Litigation partner Lauri Mazzuchetti.
Topics to be discussed include:
- Relevant FTC and HHS enforcement and business guidance
- Applicable state privacy law requirements and considerations
- An update on third-party pixel litigation
- How these developments affect business practices going forward
Guest Speakers:
- Attorney General William Tong
- Michele Lucan, Deputy Associate Attorney General and Chief of the Privacy Section
Please join us for a webinar featuring special guest speakers
Attorney General William Tong and Michele Lucan, Deputy Associate Attorney General and Chief of the Privacy Section, as they join Kelley Drye State Attorneys General practice Co-Chair
Paul Singer, Special Counsel
Abby Stempson, and Senior Associate
Beth Chun for discussion and practical information on the Connecticut Attorney General’s Office and its state consumer protection laws, as well as an overview of Connecticut’s recently enacted
Data Privacy Act and how businesses can prepare for the law to go into effect on July 1. Attorney General Tong and Ms. Lucan will also provide an overview of Connecticut’s leadership in national privacy and data breach enforcement matters.
Upcoming webinar in the series:
Thursday, May 4, 2023 at 4:00 pm ET
Nebraska Attorney General’s Office – Topic to be Announced
Guest Speakers:
- Attorney General Mike Hilgers
- Phil Carlson, Consumer Protection Division Chief
More Information available soon on the Kelley Drye
website.
IN THE NEWS AND LATEST UPDATES
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While it may be common knowledge for many that state attorneys general (State AGs) bring enforcement actions under state consumer protection laws, it is likely less well-known that the State AGs also serve a role under the Class Action Fairness Act (CAFA). State AGs typically receive notice through CAFA as
“appropriate state officials” if the settlement proposed includes class members in their state.
Negotiating exclusivity provisions in agency agreements can often be difficult. Companies want to broadly prevent agencies from working for competitors, while agencies are reluctant to cut off other sources of work. In most cases, though, once the parties have settled on the terms, the relationship moves forward and any disputes are resolved amicably behind the scenes. A recent lawsuit filed by Mars Wrigley against a promotions agency demonstrates that’s not always the case, though.
Back in
October of 2021, the FTC announced a settlement with Resident Home, LLC and its CEO, Ran Reske, for deceptively advertising its DreamCloud brand mattresses as being made with 100% USA-made materials. The administrative settlement included $753,300 in monetary redress pursuant to Section 19 of the FTC Act. Despite agreeing that Resident Home had violated the law, then-Commissioners Phillips and Wilson
dissented to the settlement on the grounds that the monetary relief exceeded the Commission’s authority. [Full disclosure: the author worked as an Attorney Advisor for Commissioner Phillips from February 2021-October 2022.]
Our State AG webinar series continues, this time with Ohio Attorney General Dave Yost and Chief of the Consumer Protection Section Melissa Wright. During our webinar, the Ohio AG’s office highlighted its consumer protection work as it relates to veterans and its Robocall Enforcement Unit. In case you missed it,
here is a recording of the webinar. We have also recapped what we learned below.
Last week, in its most high-profile effort yet to focus attention on data privacy and security, the House Committee on Energy & Commerce held a
hearing with TikTok’s CEO Shou Zi Chew. The full-Committee hearing was high drama, with sharp statements and accusations about TikTok’s connections to the Chinese government, wide attendance by Committee members, and extensive press coverage during the hearing and afterwards. Some members (notably Chairwoman Cathy McMorris Rodgers) called for TikTok to be banned from the U.S., while others asked pointed questions without committing to support a ban. Members also used the opportunity to push for federal privacy legislation (and specifically the bipartisan ADPPA), which they said would help to address the dangers posed by Big Tech companies like TikTok.
If you want to advertise that something is the
“best,” do you need substantiation? Or can you rely on a puffery argument? Although the answer depends on context, one paragraph in a recent NAD decision seems to conflict with longstanding precedent.
As we count down the last days of March, we mark the end of Christine Wilson’s tenure at the Federal Trade Commission. Set to resign March 31, Commissioner Wilson will have served four and a half years at the FTC – a little longer than a single presidential term. What many probably don’t know, however, is that she had prepared for this job her entire professional life.
This week, 22 State AGs led by Wisconsin, sent Hyundai and Kia a
letter criticizing the companies’ lack of anti-theft immobilizers and use of a customer service campaign instead of a recall to address the problem. The letter blames the car makers for
“lack of responsibility for the crisis” of car thefts with
“alarmingly high rates of thefts” saying they are harming consumers and affecting public safety. Vehicle owners, the letter states, may be unable to insure their automobiles as insurance companies State Farm and Progressive have announced they have denied policies. The companies made the choice not to follow suit regarding industry practice to include the anti-theft devices as standard in the US, yet included the immobilizers in Canada and Europe. (It should be noted that
Canada and
EU transportation agencies appear to require these by law, and NHTSA
does not).
If you’re offering any products or services involving a negative option or automatic renewal plan, pay close attention to the FTC’s announcement today of a
proposed rule that would drastically alter requirements for negative option disclosures while simultaneously granting the agency authority to seek redress and civil penalties for misrepresentations unrelated to the negative option transaction itself, such as claims related to underlying products, features, and services. Among other things, the rule as proposed would require that cancellation be
“at least as easy to use as the method the consumer used to initiate the Negative Option Feature,” and that companies obtain consent before trying to
“save” a cancellation attempt and provide annual reminders for services that do not involve the physical delivery of goods.
Last year, we
wrote about a challenge that NAD had initiated against various green claims made by the American Beverage Association (or
“ABA”). NAD found that several of ABA’s claims – including claims that
“our bottles are made to be remade” and
“we’re carefully designing our bottles to be 100% recyclable” – were substantiated, but had concerns with others. ABA appealed the decision. Last week, NARB issued its own decision, siding with NAD. Here are some highlights.
If a third-party writes a good review of your product – or, even better, rates it as one of the best – can you link to that review? A new NAD decisions suggests that the answer may not be as easy as people think.
As we have
discussed, most consumer protection laws give attorneys general broad authority to perform pre-litigation discovery through investigative subpoenas, often termed
“civil investigative demands” (CIDs). Many attorneys general can also require sworn statements and answers to interrogatories pursuant to this statutory authority. Businesses should be aware (and beware) that failure to comply with a CID, in whole or in part, can have serious consequences.