Ad Law News and Views - December 21

The Ad Law team has had quite a year! We have enjoyed meeting new clients, sharing our blogposts and podcasts, and connecting with you all through conferences, webinars, and other events. We appreciate your friendship and look forward to seeing you in the new year. Happy Holidays from the Ad Law team!


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H&M Faces New Allegations of Greenwashing

Last year, a plaintiff filed a class action lawsuit against H&M, arguing that the retailer misled consumers into thinking that its Conscious Choice collection of clothing was ​“environmentally friendly” and ​“sustainable.” This May, a federal court in Missouri dismissed the case, noting that the plaintiff had mischaracterized H&M’s claims and that the retailer had qualified the claims such that reasonable consumers would not be misled by them.

FTC’s Auto Dealer Rule Promises Sweeping Industry Changes

On December 12, the FTC issued the Combating Auto Retail Scams Rule (“CARS Rule”) which will broadly regulate sales activities of motor vehicle dealers. Authorized by Congress through the Dodd-Frank Act and promulgated under the Administrative Procedure Act (as opposed to the FTC’s more cumbersome Magnusson-Moss authority), the final rule will take effect on July 30, 2024.

CPPA to Propose Changes to Privacy Policy Requirements

While the California Privacy Protection Agency (CPPA) Board’s attention during its December 8 public meeting was mainly focused on preliminary draft regulations on automated decisionmaking technology (ADMT), risk assessments, and cybersecurity audits, the Board also decided to begin a formal process to revise its existing regulations.

Vanilla Vigilante” Spencer Sheehan Grounded After Targeting Starbucks

Over the past several years, the number of consumer class actions involving product labels has significantly increased. The claims, primarily targeting food and clothing manufacturers, typically allege products are mislabeled or are otherwise misleading to consumers and as a result, the cost to consumers increases.

California Carbon Disclosure Requirements Delayed

In October, we posted that California had enacted the Voluntary Carbon Market Disclosure Act (or​ ​“VCMDA”), a law that aims to force companies to more clearly disclose the basis for their carbon reduction claims. The VCMDA takes effect on January 1, 2024, so some companies have been hard at work trying to comply before that date.

NAD Considers Whether ​“Better” and ​“Best” Claims are Puffery

Royal Oak sells Super Size charcoal briquets that are 50% bigger than the briquets sold by certain competitors. Royal Oak advertises that ​“a bigger briquet is a better briquet” and that the briquets provide ​“the best grilling experience.” Kingsford Products Company challenged these (and other) claims and demanded that Royal Oak provide substantiation.

Massachusetts Hops on the Junk Fee Bandwagon – and Online Cancellation, Too

This week, Massachusetts Attorney General Andrea Joy Campbell’s office touted the release of draft regulations to prohibit hidden ​“junk fees,” enhance transparency in various transactions, and make it easy for consumers to cancel subscriptions. The office highlights that junk fees can make it difficult for consumers to comparison shop, harm honest business, and have a disproportionate impact on marginalized consumers. It also cites increases in automatically renewing contracts and trial offers that are more difficult to cancel than they are to enter into.

What We Learned From . . . New Hampshire

From the Land of Lincoln, we went east to the Granite State. We met with Attorney General John Formella and Brandon Garod, Senior Assistant Attorney General, to learn about the New Hampshire Office of the Attorney General and the state’s priority of protecting seniors.

NARB Reads Less Into Emojis Than NAD

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.

NAAG 2023 CP Fall Conference: Fake Reviews + Generative AI

In our final installment of our NAAG 2023 Consumer Protection Fall Conference debriefing (click here for parts one and two), unsurprisingly, fake reviews and generative AI were the big topics that closed out the conference.