Welcome back to Ad Law News and Views.

March kicked off with Kelley Drye’s Advertising, Privacy, and Financial Services teams covering hot topics and issues to watch for in 2023 in fintech and financial services. Matt LuzadderDonnelly McDowellKate White, and Ioana Gorecki hosted What to Expect in 2023 FinTech and Financial Services Regulation. Click here for a recording of the webinar.

Be sure to register for our State AG Consumer Protection Webinar Series, with Ohio AG David Yost and Melissa Wright, Chief of the Consumer Protection Section, who will discuss robocalls and how states use consumer protection laws to hold companies accountable for both potential roles in illegal calls and consumer protection violations affecting or targeting veterans/military.

See below for more information on topics, dates, and registration details.


Thursday, March 23, 2023 at 3:00 pm ET
Ohio Attorney General’s Office - Robocalls and Veterans/Military Initiatives

Guest Speakers:
  • Attorney General Dave Yost
  • Melissa Wright, Chief, Consumer Protection Section

Please join us for a webinar featuring special guest speakers Attorney General Dave Yost and Melissa Wright, Chief of the Consumer Protection Section, as they join Kelley Drye State Attorneys General practice Co-Chair Paul Singer, Special Counsel Abby Stempson, and Senior Associate Beth Chun for discussion and practical information on the Ohio Attorney General’s Office and its state consumer protection laws, as well as robocall and military/veterans initiatives from the state attorney general perspective. The Ohio AG’s office will shed light on how states use consumer protection laws to hold companies accountable for both potential roles in illegal calls and consumer protection violations affecting or targeting veterans/military.

Attorney General Dave Yost and the Ohio Attorney General’s Office have been taking action to combat every link in the robocall chain. General Yost has established a special Robocall Enforcement Unit to investigate violators, take aggressive enforcement action, and push legislation to expand the state’s authority over robocalls. He has also created a website to report robocallers and sued groups alleged to have made illegal calls hoping to steal money or valuable information from Ohioans, and companies that may have supported such groups. In addition, General Yost is serving as this year’s President of the National Association of Attorneys General. Each year, the NAAG president identifies an issue to raise public awareness, and General Yost has selected Serving Those Who Serve, which focuses on veterans and military issues. We look forward to hearing from the Ohio Attorney General’s Office on both of these initiatives.

Register Here

Upcoming webinars in the series:


Tuesday, April 25, 2023 at 3:00 pm ET
Connecticut Attorney General’s Office – Privacy Enforcement and the Connecticut Data Privacy Act

Guest Speakers:
  • Attorney General William Tong
  • Michele Lucan, Deputy Associate Attorney General and Chief of the Privacy Section

More Information available soon on the Kelley Drye website.

Thursday, May 4, 2023 at 4:00 pm ET
Nebraska Attorney General’s Office – Topic to be Announced

Guest Speakers:
  • Attorney General Mike Hilgers
  • Phil Carlson, Consumer Protection Division Chief

More Information available soon on the Kelley Drye website.



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Reading the Tea Leaves in the FTC’s 2024 Congressional Budget Request

On March 13, 2023, the FTC submitted its 2024 budget request to Congress, along with a performance plan for FY 2023-2024 and a performance report for FY 2022. While generally an aspirational document, the budget includes a few notable asks that provide clues about agency priorities in the consumer protection space.

NAD Finds Dark Patterns in a Rewards Program

For $9.99 per month, Pier 1 offers Pier 1 Rewards, a loyalty program that includes benefits such as a 10% discount on all purchases and free shipping and returns on eligible items. Until recently, when a consumer added an item to a cart, the company would automatically also add the Pier 1 Rewards membership to the cart (with a pre-checked box indicating acceptance) and apply the 10% discount. A consumer had to uncheck the box to remove the membership from the cart.

FTC Reminds Advertisers to Keep AI Claims in Check

A recent post on the FTC’s Business Blog notes that although there may be disagreement about what artificial intelligence” or AI” is, those terms are being used in marketing campaigns, and the FTC worries that some advertisers won’t be able to stop themselves from overusing and abusing them.” To help those advertisers out, the FTC’s post includes four questions that they should ask themselves.

State AGs and Consumer Protection: What We Learned from ….North Carolina

Our State AG webinar series continues, this time with Consumer Protection Division Director Kevin Anderson and Deputy General Counsel Daniel Mosteller of the North Carolina Attorney General’s Office (NC AGO). During our webinar, we learned about the office’s structure, consumer protection work as it relates to public health issues, and the tools they have pursuant to the consumer protection laws of North Carolina. In case you missed it, here is a recording of the webinar. We have also recapped what we learned below.

FTC to Advertisers: We’re Tracking Your Use of Health Information

For the second time in as many months, the Federal Trade Commission (FTC) last week announced a settlement alleging that a company’s the use and disclosure of consumers’ health information for online advertising violated the law.  The BetterHelp settlement indicates that the FTC takes a broad view of what constitutes health information,” but it raises questions about how the FTC will apply its reinterpretation of the Health Breach Notification Rule under its September 2021 policy statement.

NY Attorney General Proposes Price Gouging Rules

Last week, as severe weather hit the country, price gouging laws were triggered ranging as far as California to Kentucky. And as we’ve previously reported, complying with the varied state price gouging laws can be tricky, especially where they use undefined terms like excessive” or exorbitant” to define price gouging.  Last week the New York Attorney General announced proposed rules designed strengthen enforcement of New York’s price gouging law, which was last updated in 2020 to grant the Office of the Attorney General (or OAG”) rulemaking authority. The rules would provide some needed clarity to the existing law, but would also impose new restrictions.

Food + Personal Care Product Litigation and Regulatory Highlights – February 2023

This past week, the internet lit up over whether it was okay for President Biden and the First Lady to order the same dish at the Red Hen.  In this issue, we invite you to read the February highlights on clean labeling false advertising litigation, updates on green claims, thoughts on whether light beer should taste like beer, FDA’s plant-based milks draft guidance, and USDA’s enhanced authority on organic” claims with the same level of fascination. 

NAD’s Molson Coors Decision: The Watering Down of the Objective Claim Standard

Last week, NAD released a decision in a case involving a Molson Coors ad that has received more press attention than any NAD decision in recent memory. In the ad, athletes are celebrating the completion of a difficult workout by opening a can labeled Extremely Light Beer” and pouring the liquid over their heads while an announcer says Light beer shouldn’t taste like water. It should taste like beer.” 

Senate Judiciary Hearing on Kid’s Privacy – Sunny with a Chance of Section 230 Reform

As we’ve described here, the Senate made major strides last year on legislation to protect children’s privacy and safety online. Indeed, two bipartisan bills sailed through a Commerce Committee markup, though they didn’t ultimately make it to the floor for a Senate vote. This year, kids’ privacy is once again getting attention, beginning with a February 14 Senate Judiciary Committee hearing on the issue. Members used the hearing to tout last year’s bills and mention some new ones, too. They also touched on other top-of-mind issues involving the tech industry, such as Section 230 reform and encryption.