Ad Law News and Views - May 3, 2023

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Welcome back to Ad Law News and Views.

Be sure to register for our upcoming events, including our next installment in our State AG Consumer Protection Webinar Series: Nebraska Attorney General’s Office – Consumer Protection in an AG Transition, an in-person program in Washington, DC on Tools and Tips to Be Ready for New U.S. Privacy Laws, and the webinar, Hot Topics in Green Marketing.

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

UPCOMING EVENTS

Nebraska Attorney General’s Office – Consumer Protection in an AG Transition

Thursday, May 4, 2023 at 4:00 pm ET

Guest Speakers:

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

Please join us for a webinar featuring special guest speakers Nebraska Attorney General Mike Hilgers and Phil Carlson, Consumer Protection Division Chief, 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 Nebraska Attorney General’s Office and its state consumer protection laws. Attorney General Hilgers and Mr. Carlson will also discuss consumer protection in an AG transition and the factors taken into account when reviewing the structure and resources of the division, enforcement priorities, and collaboration with others, including attorneys general, the federal government, and businesses.

REGISTER HERE

Tools and Tips to Be Ready for New U.S. Privacy Laws

Wednesday, May 17th”,“8:30AM - 10:00AM”,” Kelley Drye Offices -  Washington D.C.

If you’re finding it challenging to navigate the new requirements of California’s new CCPA regulations and new laws in Virginia, Colorado, Connecticut, and other states, you’re not alone.
Please join us for a close look at these new requirements, common pain points, and tools and strategies to address them. Our program will cover the key legal points, provide enforcement insights, and examine data governance tools to help manage access rights and deletion requests, opt-outs, data retention and destruction programs, impact assessments, and purpose limitation management.

What You’ll Learn:

• A high-level review of the current data privacy landscape in the U.S.
• Which legal requirements are creating pain points, and how companies are addressing them
• How to solve for some of the more unique requirements in the data privacy space
• Tips to balance business initiatives with data privacy requirements

Speakers:
Aaron Burstein, Partner, Kelley Drye
Matt Dumiak, Director of Privacy Services, CompliancePoint
Robert Fowler, Director of Strategic Partnerships, Exterro

Location:
Kelley Drye Offices 
Washington Harbour, Suite 400
3050 K Street, NW
Washington, DC 20007

REGISTER HERE

Hot Topics in Green Marketing

May 31, 2023 at 12:00 PM ET/ 9:00 AM PT

As more companies have started to develop Environmental, Social, and Governance (or ​“ESG”) goals and to make claims in advertising and in corporate reports about their progress towards achieving those goals, there has been increased scrutiny from regulators and the plaintiffs’ bar questioning whether companies can substantiate their claims. Unfortunately, the standards for evaluating these claims aren’t always clear, and well-meaning companies often find themselves the target of lawsuits or other challenges.

Please join us for this timely webinar about recent regulatory and class action developments and what they might mean for businesses looking to make ​“green” claims. Gonzalo Mon and Katie Rogers will discuss various topics that will help companies understand the risks and guardrails surrounding these claims.

REGISTER HERE

IN THE NEWS AND LATEST UPDATES

Get these and other stories in real time when you subscribe to the Ad Law Access blog here or visit the Advertising and Privacy Law Resource Center here.   

Chair Khan Faces Skeptical Appropriators – Controversial Initiatives Imperil Budget Increase

When a Chairman opens an appropriation hearing with these words, an agency seeking funds has a tough task ahead. Undaunted, FTC Chair Lina Khan turned on the charm and often mollified her critics. Appropriators pressed her about the FTC’s proposals to ban non-compete clauses and regulate auto dealers. They complained about reports of scams and fraud on the rise while the FTC pursued subjective notions of competition. In the end, she fared better than all the Commissioners did a week earlier in oversight hearings, but she did not hear an endorsement of her budget request.

Promotions Lessons from the My Pillow Guy

Mike Lindell – the ​“My Pillow Guy” – makes pillows that are soft to touch and claims that are hard to prove. In 2021, Lindell announced that he had compiled evidence demonstrating that China had interfered in the 2020 presidential election. He was so confident in the evidence that he launched the Prove Mike Wrong Challenge, a contest with one goal: ​“Find proof that this cyber data is not valid data from the November Election. For the people who find the evidence, 5 million is their reward.”

State AGs See Eye to Eye on Recent Telehealth Settlement

Enforcement in the telehealth space continues – this time with a bipartisan settlement between 11 State AGs and Visibly (f.k.a. Opternative), a vision telehealth company. Unlike recent telehealth settlements where enforcers focused on consumer privacy, the State AGs focused on whether the company’s claims about its products and services, including its online vision tests, were properly substantiated.

My Health My Data: Washington’s Health Data Privacy Revolution

On April 27, 2023, Washington Governor Jay Inslee signed into law the My Health My Data Act (MHMD). The law has an effective date of July 23, 2023, but the deadline to comply with most of its requirements is March 31, 2024.*  While the 2023 state legislative season may see the addition of four comprehensive privacy laws (Iowa, Indiana, Montana, and Tennessee), My Health My Data (HB 1155) could have the most far-reaching impact on businesses. 

FTC, CFPB, DOJ, and EEOC Pledge Increased Focus on Discrimination in AI

Artificial intelligence and algorithmic processes continue to remain at the top of federal law enforcement agencies’ agendas. Yesterday, the FTC, CFPB, DOJ, and EEOC issued a joint statement pledging to use their respective tools to ​“protect the public from bias in automated systems and artificial intelligence.” 

Lawsuit Accuses Old Navy of Creating False Sense of Urgency

Two Washington consumers filed a proposed class action lawsuit accusing Old Navy of spamming them with emails that included false or misleading information about the duration of sales.

State AGs ​“Regulating Algorithms – The How and Why”

This week, State AGs and their staff gathered to participate in the annual National Association of Attorneys General AG Symposium, where they discussed topics such as leadership, relationships with prosecutors, and Supreme Court updates. One of the most topical panels was a discussion of ​“Regulating Algorithms – The How and Why” moderated by Natalie Hanlon Leh, Chief Deputy AG of the Colorado AG’s Office and featuring several academics in law and technology including Professors Ellen P. Goodman, Michael Kearns, and Beth Simone Noveck.

Lawmakers Reintroduce Key Federal Cannabis Legislation

Two recently-introduced bills are sending a message in Washington D.C.: federal law should harmonize with states on marijuana issues.

Overreach, Data Privacy & More: A Rundown of the Fiscal Year 2024 FTC Budget Hearing

On Tuesday April 18, FTC Chair Khan, and Commissioners Bedoya and Slaughter spent almost three hours responding to criticism and compliments before its House oversight panel. Only occasionally did the hearing cover its title subject –  ​“Fiscal Year 2024 Federal Trade Commission Budget” – and the reaction was not encouraging for the agency.  For most of the hearing the Members and Commissioners debated the FTC’s performance.

NAD Eyes Affiliate Marketing

NAD recently announced two decisions involving Biossance’s Squalane & Marine Algae Eye Cream. Neither of the decisions involved claims made by the company itself, though. Instead, the decisions involved mentions of the eye cream made by third parties – Sephora and Hello! Magazine – and NAD generally focused on the question of whether the product mentions constituted ads.

What’s in the Indiana Consumer Data Protection Act?

Indiana’s Consumer Data Protection Act advanced in the state legislature last week and now heads to Governor Eric J. Holcomb’s desk.  The bill mirrors comprehensive privacy legislation enacted in Virginia, Utah, and Iowa, further extending the reach of privacy protections in the United States but without the complex mandates found in laws in California, Colorado, and Connecticut.  Following on the heels of Iowa’s Act Relating to Consumer Data Protection, Indiana’s law is expected to be the second state privacy law enacted this year, and the seventh comprehensive state privacy law overall.

New York’s Cannabis Market Sees New Advertising Rules

The Cannabis Control Board, a subset of the Office of Cannabis Management charged with overseeing marijuana regulations statewide, approved a set of labeling, packaging, and advertising regulations. These new rules are part of a trend of more sophisticated enforcement and regulation in the cannabis industry, particularly for products that may appeal to minors.

Safeway Faces Class Action Over BOGO Offers

Buy One, Get One – or ​“BOGO” offers – are popular with consumers and almost ubiquitous in grocery stores and other retailers across the country. Although retailers have a lot of flexibility in how to structure those offers, they need to ensure that the offers aren’t structured in a manner that overstates the amount of money that consumers can save.

FTC Sends Penalty Offense Notices to Nearly 700 Companies Regarding Product Claims Substantiation

The FTC sent out new penalty offense notices to 670 companies today, warning them that failure to substantiate product claims could result in civil penalties of more than $50,000. The companies also received copies of the FTC’s previously-issued penalty offense notices regarding endorsements and testimonials. This represents the FTC’s fourth round of penalty offense notices (previous notices involved education practices, money-making opportunities, and endorsements).

D.C. Attorney General Settles with Washington Commanders Over Misleading Deposits

Earlier this week, District of Columbia Attorney General Brian Schwalb settled one of two outstanding lawsuits against the Washington Commanders – this time over allegedly deceptive practices related to security deposits paid by season ticket holders.  These deposits, which averaged $1,200, were supposed to be returned by the team thirty days after the expiration of ticket holders’ contracts, but the AG alleged they were instead retained by the team for years.  Moreover, the AG alleged that the team created additional hurdles for consumers who did seek their deposits back, including requiring a signed, written request, which was never disclosed to consumers as a requirement for a refund.  Former AG Karl Racine originally brought the case in 2022 alleging that this conduct violated the District of Columbia Consumer Protection Procedures Act (“CPPA”).”]