Ad Law News and Views - October 19, 2023

Welcome back to Ad Law News and Views.

Fall Activities, Upcoming Conferences, Webinars and more!

Fall. It’s a time for apple picking. Pumpkin-spiced lattes. And all the fall sports – from baseball, to soccer, track, football, and more. Whomever you cheer for – GO TEAM!

Fall is also a time for many Ad Law conferences and webinars – check them out!

Upcoming Event

TODAY, Thursday, October 19, 2023 at 2:00 pm ET
New Hampshire Attorney General’s Office

Please join us for a webinar featuring special guest speakers New Hampshire Attorney General John Formella and Brandon Garod, Senior Assistant Attorney General in the Consumer Protection and Antitrust Bureau, 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 of New Hampshire’s consumer protection priorities, including combating financial exploitation of the elderly. AG Formella and Mr. Garod will discuss New Hampshire’s recent efforts to increase protections for elderly residents including recent legislative changes, as well as the expansion of the Elder Abuse and Financial Exploitation Unit of the Consumer Protection and Antitrust Bureau. The guest speakers will discuss how their office uses the New Hampshire Consumer Protection Act to protect Granite Staters from unfair and deceptive acts or practices.

Guest Speakers:

  • New Hampshire Attorney General John Formella
  • Brandon Garod, Senior Assistant Attorney General, Consumer Protection and Antitrust Bureau

IAB State Privacy Law Summit

Kelley Drye, and industry partner Ketch, are proud to sponsor the upcoming IAB State Privacy Law Summit in New York City, on Wednesday, November 15. With five state privacy laws having come into effect in 2023 and eight new privacy laws coming into effect through 2025, industry participants are navigating an increasingly complex compliance landscape. This event convenes privacy lawyers and cross-functional privacy professionals to make sense of that landscape through deep-dive discussions that leverage demonstratives and data flows to set context and involves town-hall style dialogue. Partners Alysa Hutnik and Aaron Burstein are speakers.

We invite you to join us for an exclusive day of state privacy law where we dive into:

  • Privacy compliance issues involving sensitive personal information when engaging in digital advertising
  • How to leverage the IAB Tech Lab’s Global Privacy Platform technical specification and the road to industry adoption
  • Unpacking diligence requirements in state privacy laws and what steps to undertake now
  • How to address privacy compliance issues involved in ad campaign measurement
  • The role for guardrails in deidentification of personal information
  • How publishers and advertisers can engage in effective signaling and choice

This event is intended for legal and cross-functional privacy professionals in the digital media and advertising industry.


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.

SharkNinja Faces Heat Over Temperature and Non-Stick Claims

Our State AG webinar series continues. After spending time in the Centennial State, we went east to the Land of Lincoln. We met with Illinois Attorney General Kwame Raoul, Susan Ellis, Consumer Protection Division Chief, and Lyle Evans, Chief of Investigations, to learn about the office, their priorities, and more about Organized Retail Crime and the INFORM Consumers Act. Highlights of what we learned are recapped below.

What We Learned From … Illinois

Our State AG webinar series continues. After spending time in the Centennial State, we went east to the Land of Lincoln. We met with Illinois Attorney General Kwame Raoul, Susan Ellis, Consumer Protection Division Chief, and Lyle Evans, Chief of Investigations, to learn about the office, their priorities, and more about Organized Retail Crime and the INFORM Consumers Act. Highlights of what we learned are recapped below.

New California Law Regulates Carbon Claims

Green is the new black, or so it seems, based on the growing number of companies that are making ​“green” claims. Claims about carbon reductions are particularly in fashion, both with advertisers and with a growing number of challengers who are questioning the basis for those claims. Some lawsuits even allege that there are ​“foundational issues with the voluntary carbon offset (“VCO”) market” – the principle means for substantiating those claims – that render ​“claims based on offsets inherently problematic.”

Blackbaud Settles Multistate Investigation Related to Data Breach for $49.5 Million

Blackbaud, a software company that was the subject of a multistate investigation for a 2020 data breach, has reached a settlement for $49.5 million with the attorneys general (AGs) of 49 states (not including California) and the District of Columbia, led by Indiana and Vermont.

California Bans Hidden Fees

As we posted yesterday, the FTC announced a proposed rule that could fundamentally alter how businesses across industries advertise prices and disclose fees to consumers. At around the same time the FTC was preparing to announce the proposed rule, California AG Rob Bonta was commenting about California’s efforts to ban hidden or ​“junk” fees, boasting that ​“California now has the most effective piece of legislation in the nation to tackle this problem. The price Californians see will be the price they pay.”

NARB Gives FTC an Opportunity to Apply New Endorsement Guides

Smile Prep operates a website that provides reviews of clear aligners (otherwise known as ​“invisible braces”) based on an ​“extensive five-point analysis.” Because Smile Prep’s sole source of revenue consists of commissions from some of the companies it reviews, Smile Direct Club (or ​“SDC”) filed an NAD challenge suggesting that the company ​“slants its rankings and reviews to favor those companies that make payments to it at the relative expense of those companies that don’t.”

Big Brother & Biased Bots: Practical Considerations for Using AI in Employment Decision-Making

The adoption of artificial intelligence (AI) in the workplace is accelerating with an increasing number of employers integrating AI-related technologies into every stage of the employment lifecycle – from recruitment to separation. While these technologies offer employers opportunities to streamline certain processes and make others more objective, they also pose certain challenges and legal risks.

Neora Prevails In Landmark Decision For Direct Selling Industry

Big, BIG win for the direct selling industry, as Judge Barbara Lynn (N.D. Texas) grants judgment for Neora, LLC (formerly Nerium) on all of the FTC’s claims, including that the company was operating an illegal pyramid scheme and made deceptive income and product claims (both directly and through its distributors). Expect the FTC to gather itself and explain that this is one district court case before one judge. But make no mistake about it, Judge Lynn (Clinton appointee) is a respected jurist, with a reputation of being thorough and well-prepared. This decision leaves a mark.

Retailer to Pay $10 Million to Settle Pricing Claims

Lawsuits challenging how companies advertise sales are on the rise. In this year alone, we’ve posted about a lawsuit over a grocer’s BOGO offers, a lawsuit over a major retailer’s frequent sales, and a large settlement over another retailer’s sale practices. This week brought news of a new $10 million settlement in a lawsuit alleging that SelectBlinds’ sale practices violated California law.

CFPB Previews Proposals that Could Fundamentally Shift Data Broker Business

In connection with its convening of a panel of small businesses to provide input on potential regulatory actions, the CFPB released an outline of its proposals to use its rulemaking authority under the Fair Credit Reporting Act (FCRA) to cover data brokers and prohibit the use of medical debt collection data in making credit decisions. While the outline does not include any specific language, it evidences the Bureau’s desire to fundamentally alter the data broker business model by expanding the definition of ​“consumer reporting agency” (CRA) to cover more data brokers, and limit their ability to share consumer information without a permissible purpose. The CFPB also seeks to prevent CRAs from providing credit header data to third parties for purposes beyond the scope of the FCRA. In effect, the Bureau intends to significantly curtail the sale of certain personal data for marketing purposes.