Ad Law News and Views - July 24, 2023
Welcome back to Ad Law News and Views.
Summer Playlists, Upcoming State AG Webinar, and more!
Listen to our Top Podcasts Playlist and our attorneys’ favorite summer songs as you sit on the beach or by the pool and relax this summer. Also, it’s not too late to register for today’s webinar with the Colorado Attorney General’s Office. If you’re in the Denver area, join us for a Practical Privacy Hands-on Workshop on August 10. More details are below.
TOP AD LAW ACCESS PODCAST PLAYLIST AND OUR AD LAW TEAM’S SUMMER PLAYLIST
Our Podcast Playlist: Check out the most played Ad Law Access Podcast episodes of the last year:
- Aaron Burstein: Absolute Loser, Fruit Bats and Sandals and White Socks, Portastatic
- Donnelly McDowell: Padam Padam, Kylie Monogue and Cruel Summer, Taylor Swift
- Gonzalo Mon: West Coast Eyes, Robert Jon & The Wreck
- Paul Singer: Island in the Sun, Weezer and Summer Solstice, San Saba County
- John Villafranco: Low Rider, Unmet Ozcan, and War Raspberry Jam, Alla-Las
- Kristi Wolff: I listen to whatever is on Apple Music playlists for the mood that I’m in.
- Abby Stempson: Fast Car, Luke Combs and Dreadlock Holiday, 10cc (or anything on Yacht Rock Radio)
- Alex Schneider: We just listen to Moana on repeat here.
- Kaelyne Wietelman: My summer playlist is full of songs from the Bluey and the Parent Trap soundtracks!
Monday, July 24, 2023 at 3:00 pm ET
Colorado Attorney General’s Office: Colorado Privacy Act, AI, and Teen Mental Health
- Attorney General Phil Weiser
- Nathan Blake, Deputy Attorney General for Consumer Protection
Please join us for a webinar featuring special guest speakers Colorado Attorney General Phil Weiser and Nathan Blake, Deputy Attorney General for Consumer Protection, 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 on a variety of important consumer protection topics, including teen mental health and the increased use of artificial intelligence. AG Weiser has been a national leader on these important topics and will discuss how AGs are using their existing and new consumer protection authority to examine emerging issues.
In addition, the Colorado Privacy Act went into effect on July 1. AG Weiser marked the occasion with a series of letters sent to businesses announcing the office’s intent to enforce the new law. Join us to learn more about the Act, and the office’s enforcement plans.
Thursday, August 10, 2023 from 12:00 pm to 4:00 pm MT in Downtown Denver
Practical Privacy: Hands-On Advice for Privacy Practitioners
Join members of Kelley Drye’s Privacy team, Alysa Hutnik and Aaron Burstein, in collaboration with our industry partners at Ketch, for an engaging, highly interactive in-person workshop on privacy issues affecting businesses today.
The workshop will cover:
- A Real-Time DPIA Walkthrough: Leveraging an example in targeted advertising, we’ll conduct a DPIA (Data Protection Impact Assessment) in real-time. You’ll have the opportunity to ask real questions relevant to your business.
- All About SPI (Sensitive Personal Information): New state privacy laws, litigation risk, and industry developments are changing how companies classify, use, and permission data that may qualify as sensitive. From biometrics, to location privacy, to health data, prior ways of doing business are facing headwinds. We’ll discuss considerations for these data types, how some industries are responding, and possible approaches depending on the use case.
- Demystifying Data Deletion: How should companies approach data deletion to respect individual rights while protecting business needs? We’ll explore best practices across industries and systems.
Following the workshop, all are invited to network and mingle at a cocktail reception. We hope you will join us!
With so much going on in the privacy space, it can be hard to keep track of everything. For example, while you were struggling to keep pace with rapidly advancing state privacy laws, FTC and EU privacy developments, market and technological changes, and various proposals to protect children’s privacy, you might have missed some eye-opening developments regarding the government’s purchase of consumer data from data brokers and other third party data sellers.
The California Privacy Protection Agency (CPPA) and California Office of Attorney General (OAG) are publicly pressing ahead with enforcement now that they have the authority to enforce the California Consumer Privacy Act (CCPA) as of July 1st. While the agencies did not announce headline grabbing enforcement decisions at the start of the month, there were some notable developments.
Two years ago this month, the state of Colorado joined California and Virginia in the passage of broad consumer protection legislation when the Colorado Privacy Act (CPA) was signed into law.
An implacable Lina Khan fended off four hours of hostile questions from members of the House Judiciary Committee, who criticized her ethics and performance as FTC Chair and then proceeded to attack FTC career staffers, each other, and Congress itself at a grueling oversight hearing on July 13. Accusations of mismanagement, cover-ups, conflicts of interest, and partisanship made good theatre and national news, but a potentially devastating development for the FTC went almost unmentioned and unreported.
On June 29, 2023, the FTC released the long-awaited updates to the Guides Concerning the Use of Endorsements and Testimonials in Advertising – more commonly known as the Endorsement Guides – along with an updated FAQ entitled What People Are Asking. We summarized some of the key changes in our post the same day.
FTC’s Proposed Rule on “Fake Reviews” Covers Much More; Provides Clarity on Some Issues, Uncertainty on Others
On the Friday before a long 4th of July weekend, the FTC delivered some light beach reading in the form of a 100-page notice of proposed rulemaking (NPRM) “banning fake reviews and testimonials.” While banning fake reviews and testimonials seems uncontroversial, the proposed rule would actually do much more, including authorizing civil penalties for businesses that procure or disseminate deceptive (not just “fake”) reviews when they “knew or should have known” the review was deceptive and where the review fails to disclose the testimonialist’s relationship with the business or product.
On June 23, 2023, a bipartisan coalition of 26 state attorneys general (AGs) submitted comments in support of the FTC’s amendments to the Negative Option Rule (Rule). Though the AGs assert that the FTC’s requirements under the proposed Negative Option Rule are already generally required by existing state and federal law, the AGs agreed that additional guidance and specificity on compliance with negative option rules would benefit consumers.
In May 2022, the FTC proposed changes to its Endorsement Guides. Among other things, those changes created more prescriptive disclosure requirements for endorsements, imposed various requirements for consumer reviews, and clarified that all parties involved in a marketing campaign could be held liable for lapses. At that time, we analyzed the FTC’s proposed changes and examined how they might impact advertising practices and influencer marketing.
This week, just a few days before the Fourth of July holiday, the FTC announced a settlement with three fashion companies (that operated together as a common enterprise) over patriotic claims that the companies made about various accessories, such as belts, bags, wallets, and shoes.
Yesterday, the FTC announced an $18.5 million settlement with Publishers Clearing House (PCH), a marketing company known for using sweepstakes to sell magazine subscriptions. In its 52-page complaint, the FTC alleges PCH used purported “dark patterns” to promote product purchases, failed to disclose total costs, misrepresented its privacy practices, and used misleading email headers in violation of Section 5 and the CAN-SPAM Act. The order prohibits the company from making specific misrepresentations regarding sweepstakes entries, includes mandatory disclosure requirements, and requires consumer data deletion, among other provisions.
As we’ve written here, a brand new law governing online marketplaces and sellers takes effect TODAY, Tuesday, June 27. The new law (the Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act, or INFORM Consumers Act) is designed to deter criminals from selling counterfeit, stolen, defective, and dangerous products through online marketplaces.
In a deep sea of consumer fraud and deceptive packaging litigation, glimpses of reason are starting to emerge in the slack fill space, suggesting that these cases may (finally) be on the decline.
Our State AG webinar series continues, this time with Nebraska Attorney General Mike Hilgers and Consumer Protection Division Chief Phil Carlson, a position previously held by our own Abby Stempson. During our webinar, the Nebraska AG’s Office highlighted its consumer protection work during a time of transition and general consumer protection topics. In case you missed it, here is a recording of the webinar. We recap what we learned below.
JBS – the second-largest food company in the world – made several aspirational claims about its commitment “to be net zero by 2040.” Those claims were challenged by a trade association, who argued that the claims were misleading. As we reported in February, although NAD acknowledged that JBS had taken steps that “may be helpful towards achieving net-zero by 2040,” NAD found that those steps weren’t enough to support the implied claim that JBS was currently implementing a plan to “achieve net zero operational impact by 2040.” JBS appealed the decision to the NARB.
In 2017, the FTC announced that Adore Me, an online lingerie company, had agreed to return more than $1.3 million to customers who enrolled in a negative-option membership program offering discounts and other benefits. Almost six years later – in another example of states pursuing settlements on their own – 32 state attorneys general announced a $2.3 million settlement with Adore Me over the same program.
Our State AG webinar series continued with Connecticut Attorney General William Tong and Chief of the Privacy Consumer Protection Section Michele Lucan. In Part I, we discussed Connecticut’s rollout of their new comprehensive privacy law, and in Part II we will discuss how consumer protection operates at the Office of the Attorney General in Connecticut.