Ad Law News and Views - February 13, 2021



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Penn State Football’s Super Bowl Claims Flagged on Social Media

Biden EPA Continues Aggressive Enforcement Against Disinfectant Products and UV Devices Claiming to Kill Coronavirus

You Can Hide Your Covid-Brows, But Don’t Hide Covid Fees

State Privacy Legislation Update

Many states are considering comprehensive privacy legislation in the absence of a federal law. We are tracking these bills closely and share a few bills below to keep an eye on during this year’s legislative sessions.

Minnesota Privacy Bill (HF36): The unnamed Minnesota privacy law tracks many of the CCPA’s requirements both regarding notice requirements and consumer rights, including the right to opt-out of the sale of personal information. Unlike the CCPA, the bill includes a private cause of action for any violation that leads to consumer injury, rather than just data breaches. The bill was introduced in January and referred to the Commerce Finance and Policy Committee. 

New York Privacy Act (A680): The NYPA is the most stringent of the bills we’ve seen so far, requiring opt-in consent for all data processing. The bill also imposes a fiduciary duty on controllers and data brokers. The bill is currently in the Assembly Committee on Consumer Affairs and Protection.

Oklahoma Computer Data Privacy Act (HB1602): The OCDPA provides rights for consumers more stringent than those in the CCPA, including the right to provide opt-in consent prior to any collection or sale of personal data. The bill also explicitly requires covered entities to implement safeguards to protect personal information. The bill recently passed the Technology Committee.

Virginia Consumer Data Protection Act (HB473): The Commonwealth seems to be the closest to passing a state privacy bill, with companion bills having passed in the House and Senate. The legislature began a special session this week, and will likely reconcile the two bills without issue. If passed, the law would go into effect on Jan. 1, 2023. The VCDPA would provide consumers with various rights consistent with the CCPA and GDPR, and violations of the law permit a private cause of action under the state’s Consumer Protection Act. If the special session ends without reconciliation, the Act would die, and would need to be reintroduced in the next session.

Washington Privacy Act (SB5062): The WPA is the state’s latest attempt to pass a comprehensive privacy law, with two previous bills failing to make it through the legislature. This most recent bill is broader than prior iterations, but still provides for consumer rights, and does not include a private cause of action. The bill is currently pending a public hearing in the Senate Ways & Means Committee this month.

What People Are Saying: Former FTC Consumer Protection Bureau Director Jessica Rich posted on LinkedIn that she was alarmed at the many loopholes and exceptions in both the VA and WA privacy bills,” saying that the proposed measures created loosy-goosy requirements and take-backs you can drive a truck through,” and that the legislation was going backwards.”

To follow our coverage of these and other privacy matters in real time, subscribe to our Ad Law Access blog.




What to Expect in Consumer Financial Protection and FinTech in 202‪1‬
With the publication of the recent CFPB Taskforce on Federal Consumer Financial Law Report and President Biden tapping Rohit Chopra, current FTC commissioner and vocal proponent of aggressive enforcement, to Lead the agency, consumer financial protection is once again top of mind for many. On this episode of the Ad Law Access Podcast, partner Alysa Hutnik and special counsel Donnelly McDowell discuss consumer financial protection, fintech, financial services, and the consumer protection issues that the CFPB and FTC have broad discretion over.
Find more on the CFPB and related topics on the Ad Law Access blog. You can find the Ad Law Access Podcast and other Kelley Drye Podcasts on our Insights Page or wherever you get your podcasts.


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Kelley Drye Brief - Winter 2021

The Kelley Drye Brief is our quarterly newsletter that provides readers with important content produced by firm lawyers, upcoming events, industry forecasts and firm updates.  This issue includes a message to our clients, our top podcasts of 2020, highlights of the initiatives taken by our Task Force on Racial Equality, an examination of what employers need to know about COVID-related laws and legislation in 2021 and more. 

Kelley Drye January 2021 Content Digest

January went by so fast that you may not have had time to process everything that happened. That’s why we share the monthly compendium of articles, blogs, and digital content produced each month by Kelley Drye.

Real Estate Industry Alerts Tracker

The Kelley Drye Real Estate practice group is carefully monitoring across all facets of the real estate industry developments and opportunities arising out of the disruptions to the economy caused by coronavirus. In this newsletter you will find what we hope is a useful summary of some of the more significant legal and regulatory developments together with intelligence on emerging market and practice trends as real estate industry professionals begin to develop responses to the fallout from the wide spread economic disruption.


A collection of the top older reads this past week:

House Democrats Primed to Introduce 13(b) Legislative Fix

Virginia Privacy Bill Advances

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

State Privacy Bills Gain Momentum

Second Circuit Limits Copyright Damages To Those Incurred Within Three Years Prior to Suit

NAD Addresses Disclosures on Influencer TikTok Videos

Peloton Faces Uphill Ride on Ever-Growing” Claims

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

What Happens to the FTC Under a Biden-Harris Administration

New Court Decision Address Manipulation of Reviews

Consumer Litigation Under the CCPA: A Year in Review

FTC Moving Away From Lax Enforcement” with Made in USA Claims

The Pink Tax: Discrimination or Actual Differentiation?

CCPA Litigation Round-Up: Q3 & Q4 2020

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

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

Section 13(b) Gets its Day in Court: It seems the problem you have is the text” – Justice Kavanaugh

Find these and other stories on the Ad Law Access blog and podcast. Also see the Advertising and Privacy Law Resource Center, available via KelleyDrye​.com, our online repository of our thought leadership and resources on subjects that affect our clients day-to-day.