Ad Law News and Views - June 6, 2020

CCPA Update: Final Regulations Submitted but No Changes from Prior Draft

On June 2, California Attorney General Xavier Becerra announced that he had submitted final CCPA regulations to the Office of Administrative Law (OAL) for review. The final regulations are substantively identical to the second set of modified proposed regulations, which the AG released in March. In addition, the AG issued a Final Statement of Reasons that (1) explains the changes between the first draft and final regulations, and (2) is accompanied by Appendices that respond to each public comment received throughout the rulemaking process – including written comments submitted in response to each draft of proposed regulations and those provided at the four public hearings held in December 2019.

Another Federal Court Halts False Advertising Case Pending FDA Review of CBD

On May 22, Central California District Court Judge Virginia A. Phillips granted CBD retailer CV Sciences, Inc.’s (CV Sciences) request to stay the case of Colette et al. v. CV Sciences Inc., Case No. 2:19-cv-10227 (C.D. Cal), until the U.S. Food and drug Administration (FDA) completes its rule making regarding the marketing and labeling of CBD ingestible products.  This marks the second time this year that a federal court has paused class action litigation over alleged mis-branding of products containing CBD.  

EPA Issues Consumer Advisory on Products Claiming to Kill Coronavirus

EPA issued another in a series of recent advisories aiming to clarify for consumers and companies what they need to know about disinfectant products claiming to kill the coronavirus. EPA is actively investigating the numerous tips and complaints it continues to receive concerning products marketed with possibly false and misleading coronavirus/COVID-19 related claims.

Executive Order Strikes at Section 230, But Legal Impact Likely to be Limited

In previous posts, we’ve written about Section 230 of the Communications Decency Act. Like it or hate it, Section 230 has become integral to the internet, and it’s no exaggeration to say that social media probably couldn’t work without it. As a refresher, Section 230 generally states that an online platform can’t be held liable as a publisher or speaker for content provided by someone else. The law does not provide a blanket immunity, however. Platforms can be held liable when they are ​“responsible, in whole or in part, for the creation or development” of unlawful content. The question in many CDA cases is at what point a platform crosses the line between simply allowing others to post content and playing a role in the creation of that content.

Another Slack Fill Preemption Win for the Cosmetics Industry in Critcher v. L’Oreal

In a victory for cosmetics companies everywhere, the Second Circuit has affirmed the dismissal of slack fill allegations claiming that L’Oréal’s pump dispense mechanism for serums, lotions, and liquid makeup prevents consumers from utilizing every drop of product.

Keep Calm and Go Online: Regulatory Considerations Around the Spike in Demand for Mental Health Apps

A recent Marketplace Tech podcast episode on the spike in demand for mental health apps caught our attention.  As shocking headlines and stay-at-home orders rolled across the country, demand for mental health apps increased almost 30% since the pandemic began, according to CNBC.  And there is a wide variety of options to choose from, with roughly 20,000 mental health apps available across app stores.  This got the editors of Marketplace Tech asking two questions:  Do mental health apps work?  And what are the regulatory and privacy implications?  It’s worth a listen when you have time and we figured that we could weigh in as well.

Do they work?

FDA and FTC Joint Warning Letters Target Amazon Affiliates Making False COVID-19 Claims

Federal regulators continued their efforts to combat the spread of products featuring allegedly false and misleading claims that products can diagnose, treat, cure, or prevent COVID-19.  In warning letters issued to CBD Gaze, Alternavita, Musthavemom​.com, and Careful Cents LLC, the agencies identify the respective recipients as participants in the Amazon Affiliate program.  Amazon Affiliates are marketers who earn commissions by promoting products sold on Amazon.  The letters state that the products at issue, which include essential oils, grapefruit seed extracts, cod liver oil, and others, feature false treatment and prevention claims.

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ON DEMAND CONTENT

We have pulled together a selection of on demand content that we hope you find useful:

PODCASTS

The Ad Law Access podcast is available now through Apple, Spotify, Google Podcasts, SoundCloud, and wherever you get your podcasts.

WEBINARS

This year, in conjunction with the launch of the Advertising and Privacy Law Resource Center, we have been holding a series of webinars:

We will announce the next series of webinars soon.

SPOTLIGHT ON INTERNATIONAL TRADE

Kelley Drye’s leading International Trade practice is known for protecting U.S. manufacturers against unfairly traded goods and for our insight into the politics surrounding trade issues. Beyond our significant experience with antidumping (AD), countervailing duties (CVD) and other trade remedies, we counsel clients on the full range of laws governing the export and reexport of goods, technology, software, and services, and help companies navigate rapidly evolving U.S. and EU economic sanctions. We have decades of experience advising companies on how to comply with these rules; have conducted dozens of small and large internal investigations of potential violations; and have successfully resolved criminal and regulatory agency enforcement actions on behalf of U.S. and multinational companies. To learn more about the International Trade practice group, please visit our list of attorneys and stay up to date on all international trade developments by subscribing to our blog, the Trade and Manufacturing Monitor.


COVID-19 RESOURCES

In addition to the webinars mentioned above, Kelley Drye is making the following COVID-19 resources available: 

KELLEY DRYE’S COVID-19 RESPONSE

Kelley Drye’s COVID-19 Response Resource Center is a dedicated source that provides guidance and addresses questions about legal and business concerns arising from the Coronavirus outbreak.​ Our priority is to closely monitor and track developments to help you stay informed, so that you can respond to the shifting landscape. To receive Kelley Drye’s updates on COVID-19 legal issues, sign up here.

COVID-19 DAILY WASHINGTON UPDATE

The Washington Update is a daily synopsis of federal government actions related to the COVID-19 pandemic.  The synopsis covers actions coming from Congress, the White House and various federal agencies, including the CDC, the Departments of Labor, Health and Human Services, Homeland Security and Treasury/IRS, the Food and Drug Administration and the Federal Trade Commission, among others.  You can sign up to receive the daily Washington Update  by subscribing to our COVID-19 interest area here.  Archived editions of the Washington Update can be found here.

COMMLAW MONITOR

As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (FCC) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the ​“COVID-19” blog category for previous updates. If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group.

KELLEY DRYE HONORED

Corporate Legal Operations Consortium (CLOC) Recognizes Kelley Drye’s Salesforce Team in their Legal Innovation in Operations Project (The LIO Project)

The LIO Project is focused on how law firms are changing their practice group service and business models to better address client needs from an operational (rather than substantive) perspective. This prestigious recognition program was designed to honor those law firms seeking to achieve innovation and design excellence in legal operations, thereby contributing to the continuing evolution of the global corporate legal ecosystem.