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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The Biden Tax Plan

Find the Legal Download and other Kelley Drye Podcasts on our Insights Page or wherever you get your podcasts.


A collection of the top older reads so far in 2021:

Does the NAD’s Capillus Decision Baldly Contradict the FDA?

Peloton Faces Uphill Ride on Ever-Growing” Claims

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

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

What Happens to the FTC Under a Biden-Harris Administration?

The CCPA Non-Discrimination Right, Explained

New Court Decision Address Manipulation of Reviews

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

Proposed NY Biometric Privacy Act Would Allow Private Right of Action

What If . . . Section 19 of the FTC Act Becomes the FTC’s Best Path to Monetary Relief: Revisiting Figgie International

NAD Addresses Disclosures on Influencer TikTok Videos

Supreme Court Hears Oral Argument Over the TCPA’s Definition of an Autodialer

CCPA Update: California AG Proposes Fourth Set of Changes to CCPA Regulations

It’s Here: California Voters Approve the CPRA       

Federal Trade Commission’s CBD Crackdown: Something Old and Something New

Supreme Court Hears Oral Argument Over the TCPA’s Definition of an Autodialer

Employers Beware: The Illinois Artificial Intelligence Video Interview Act Is Now in Effect

FTC Announces Operation Income Illusion” to Crack Down on Deceptive Income Claims

The Pink Tax: Discrimination or Actual Differentiation?

Lessons Learned for Maintaining Attorney-Client Privileged Data Breach Investigation (and other Consultant) Reports

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.


Graphic Labeling of a BE Disclosure

February 10, 2021”,“Webinar
SGS & Co.
Donnelly McDowell

What Privacy Professionals to Need Know: Breaking Down Your CPRA Compliance Checklist for 2021

February 25, 2021”,“Webinar
Alysa Hutnik

Crystal Ball Gazing: Post-Election Antitrust

March 24, 2021”,“Webinar
ABA Antitrust Section Virtual Spring Meeting 2021
Bill MacLeod

American Bar Association 69th Antitrust Law Virtual Spring Meeting

March 23-26, 2021”,“Virtual Meeting
Alysa HutnikBill MacLeod


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.