Ad Law News and Views - August 25, 2023
Welcome back to Ad Law News and Views.
Best Lawyers Recognition, Leveraging Partnerships, and more!
Join Kelley Drye’s State Attorneys General Ad Law Team for the next program in the 2023 State Attorneys General Webinar Series: Illinois Attorney General’s Office Organized Retail Crime, the INFORM Act, and other Illinois Consumer Protection Laws. More details are below.
Best Lawyers 2024
We are pleased to announce that several attorneys were recognized last week by Best Lawyers©, a distinguished ranking service based solely on peer review. Congratulations to Dana Rosenfeld, Alysa Hutnik, Bill MacLeod, Gonzalo Mon, Christie Thompson, Kristi Wolff, and John Villafranco, on being named the best lawyers in Advertising, Food & Beverage, and Antirust Law. These attorneys were selected for their legal prowess and respect from their peers in the industry.
Industry Partnerships
Kelley Drye’s Ad Law attorneys are frequently invited to be guest speakers on vlogs and podcasts. In the last month, Paul Singer joined Ketch on their weekly Privacy Huddle to discuss Colorado and Connecticut’s enforcement of their state privacy laws and the desire of state AGs to regulate AI. Ioana Gorecki was also called to collaborate on The Rise, Fall, and Fallout of the FTC’s 13(b) Monetary Remedies Authority – a podcast produced by the American Bar Association’s Antitrust Law Section.
UPCOMING EVENTS
Tuesday, August 29, 2023 at 2:00 pm ET
Illinois Attorney General’s Office – Organized Retail Crime, the INFORM Act, and other Illinois Consumer Protection Laws
Guest Speakers:
- Attorney General Kwame Raoul
- Susan Ellis, Consumer Protection Division Chief
- Lyle Evans, Chief of Investigations
Please join us for a webinar featuring special guest speakers Illinois Attorney General Kwame Raoul, Consumer Protection Division Chief Susan Ellis, and Chief of Investigations Lyle Evans as they join Kelley Drye State Attorneys General practice Co-Chair Paul Singer, Special Counsel Abby Stempson, and Senior Associate Beth Chun for a discussion of the state’s efforts to combat organized retail crime. New state and federal laws, including the INFORM Consumers Act, create new mechanisms for enforcers to collect information, collaborate, and pursue enforcement efforts. Our speakers will address the information and obligations businesses need to understand pursuant to these laws, as well as the state’s existing unfair and deceptive trade practice authority.
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IN THE NEWS AND LATEST UPDATES
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The FTC Collaboration Act: Benefits for the Business Community
On October 10, 2022, the FTC Collaboration Act of 2021 became law. The Act’s stated purpose is to enhance cooperation between the Federal Trade Commission (FTC) and state attorneys general (AGs) in combatting unfair and deceptive practices. The Act requires the FTC to complete a study and issue a public report based on that study. Throughout the summer, the FTC accepted comments from interested stakeholders on a series of questions related to the roles and responsibilities of the FTC and AGs that best advance collaboration and consumer protection, and how to dedicate resources and implement accountability mechanisms to fulfill those goals.
FTC Warns That Deceptive AI Content Ownership Claims Violate the FTC Act
The buzz around generative AI has raised many IP-related questions, such as the legality of using IP to train AI algorithms or ownership of AI-generated content. But the FTC warns that claims about content ownership don’t just give rise to IP concerns – they could also constitute FTC Act violations if they meet the unfair or deceptive standard in Section 5. (Click here and here for our take on other recent AI-related guidance from the FTC.)
This Summer’s Hot Topic: AGs and AI
This summer has been hot all around, but perhaps the hottest topic on the minds of state attorneys general (AGs) continues to be artificial intelligence (AI). As we recently heard from Colorado Attorney General Phil Weiser, AI is a big concern for regulators trying to understand all the ways in which AI permeates our daily lives in order to effectively regulate the algorithms that create the AI.
FTC Assesses Primary Purpose of Emails in CAN SPAM Enforcement
As most people know – either from professional or personal experience – the CAN SPAM Act requires companies who send “commercial” email messages to give consumers an opportunity to opt-out of receiving those messages in the future. The opt-out requirement does not apply to “transactional” messages, which generally facilitate an already agreed-upon transaction or update a customer about an ongoing transaction.
NAD Reads into Emojis
Earlier this year, Coca-Cola reformulated its Powerade beverage to include more electrolytes. In some ads, it boasted that the beverage now contained “50% more electrolytes vs. Gatorade Thirst Quencher.” One social media post featured a headline “Powerade vs. Gatorade Thirst Quencher” above a side-by-side comparison of the electrolyte and vitamin content of the two beverages. The caption read: “Don’t Underestimate our Electrolytes” followed by a flexed arm emoji. 💪
NARB Decision Holds Lessons for Claim Substantiation
NARB recently announced a decision in a case involving various claims that Shark Ninja made in an infomercial for its Shark Stratos Powered Lift-Away vacuum cleaner, including claims about how well the vacuum picks up hair and how well it reduces odors. The decision covers a lot of ground – Dyson challenged six express claims and nine implied claims – but we’re just going to focus on a few issues that come up regularly in our conversations with clients about claim substantiation.
Spilling the Tea on Made in USA Claims
We regularly cover challenges to “Made in USA” claims, particularly by the FTC, but most of the time those cases don’t rely on consumer perception evidence about what the claim means. So the recent class certification in the Central District of California in a case against R.C. Bigelow, Inc. caught our attention. Plaintiffs allege that Bigelow misrepresents that its tea is “Manufactured in the USA” because the tea was processed abroad. They relied on a perception survey to spill the tea on consumer takeaway for the claim.
Texas AG, Arkansas AG, and FTC Don’t Bless Pyramid Scheme “Blessings in No Time”
Last week, BINT Operations LLC aka “Blessings in No Time” (“BINT”) and its owners resolved two separate, but coordinated, lawsuits stemming from states’ and the FTC’s investigations alleging perpetration of an illegal pyramid scheme.
State AGs and Consumer Protection: What We Learned from . . . Colorado
We continue our State AG webinar series traveling farther west past the Great Plains to the Rocky Mountains in Colorado. Last week, we spoke with Colorado Attorney General Phil Weiser and Deputy Attorney General for Consumer Protection, Nathan Blake, and covered a wide range of topics from the office’s structure, to the Colorado Privacy Act, to artificial intelligence (AI), and teen mental health. We recap highlights of what we learned below.