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We all know a person that can be unpredictable and erratic. It can be fun to hang out with that person occasionally, because you’ll likely have funny stories to share with your friends the next morning, but you probably wouldn’t want to be married to them, because those same stories are less funny when you share them with your divorce lawyer. The same is probably true with relationships between brands and some celebrities.
As we recently blogged
here, the FTC’s review of the COPPA rule has been pending for over three years, prompting one group of Senators, in early October, to ask the agency to
“Please Update the COPPA Rule Now.” The FTC has not yet responded to that request (at least not publicly) or made any official moves towards resuming its COPPA review. However, the agency is focusing on children’s privacy and safety in other ways, including by hosting a
virtual event on October 19 on
“Protecting Kids from Stealth Advertising in Digital Media.”
The FTC has made it a priority to combat fake and misleading reviews. For example, just this year alone, the FTC announced a
settlement with a retailer over its failure to post negative reviews, announced a
settlement with another retailer over its failure to disclose that reviews were incentivized, partnered with six states to file a
lawsuit against a company that allegedly purchased fake reviews, and
proposed changes to the Endorsement Guides that would provide more detailed guidance on these practices.
In late September, we
blogged about a lawsuit that the Chamber of Commerce and other business groups filed against the CFPB, challenging the CFPB’s update to its Supervision and Examinations Manual. As updated, the manual now states that discrimination is an
“unfair” practice under the Dodd-Frank Act, and that the agency plans to scrutinize it
“across the board in consumer finance,”
“including in situations where fair lending laws may not apply.” We noted in our blogpost that the FTC and the State AGs were also sending signals that they planned to challenge discrimination using their unfairness authority.
Anyone who has strolled the supermarket alcohol aisle in recent months may fairly stand in awe of the proliferation of boozy and not-so-boozy drinks in pretty packages, with small cans and pastel colors making it difficult to immediately discern whether they contain alcohol and, if so, how much. According to
Nielsen data, in 2021, off-premise sales of no- and low-alcoholic beverages were $3.1 billion, up from $291 million the year before, with 30% predicted growth by 2024. As more low and no-alcohol products come to market, beverage makers will have to navigate the jurisdictional and labeling regulations, which can be tricky, as illustrated by a recently-filed false advertising case involving allegedly boozy kombucha.
In a decision with potentially far-reaching implications for the CFPB, a three-judge panel of the U.S. Circuit Court of Appeals for the Fifth Circuit yesterday ruled that the Bureau’s funding structure is unconstitutional. The case involved a longstanding challenge to the Bureau’s 2017 Payday Lending Rule and marks another significant obstacle for the Bureau two years after the Supreme Court’s decision in
Seila Law that its leadership structure violated separation of powers principles.
Celebrities generally don’t like when companies use their images or names without permission. For example, Jennifer Love Hewitt
didn’t love when a company used her image to promote a vitamin spray, and Michael Jordan seemed
pretty upset when a grocery store used his name to promote a steak. Now, 50 Cent seems downright angry that his picture is allegedly being used by a plastic surgeon to promote
“male sexual enhancement procedures.”
The FTC has long used policy statements, public workshops, reports, and warning letters to influence the marketplace and communicate its thinking about key issues and aspects of its mission. Examples from my tenure at the FTC include workshops and reports on
big data,
data brokers,
mobile payments, and the
internet of things; policy statements on
deceptively formatting advertisements and
homeopathic drug claims; and warning letters to a range of companies making health claims (see
here,
here, and
here, for instance).
California joined the
growing list of states to ban products containing per- and polyfluoroalkyl substances (“PFAS”) when, on September 29th, Governor Newsom signed into law legislation prohibiting the so-called
“forever chemicals” in apparel, textiles, and cosmetics. The ban goes into effect beginning in 2025, and applies to the sale, manufacture and distribution of new cosmetics and textile articles (defined to include apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths) that contain
“intentionally added” PFAS.
Earlier this week, we
posted that a plaintiff filed a proposed class action against the NFL over its automatic renewal practices. The complaint alleges that the NFL used
“dark patterns” to enroll consumers in its NFL+ subscription without consent and that it then made it difficult for them to cancel. Although we don’t know exactly what happened in that case, these are themes that come up frequently in automatic renewal cases. These themes were also echoed in an announcement by Washington AG Bob Ferguson this week.
A new paper from Northeastern University’s PFAS Project Lab and researchers from the National Institute of Environmental Health Sciences (NIEHS) reaches the sobering conclusion that over 57,000 sites in the U.S. have
“presumptive contamination” from per- and polyfluoroalkyl substances (“PFAS”). Even more sobering is the authors’ assertion that that number is almost certainly a dramatic underestimation of the number of PFAS-contaminated sites, given limited data availability and the conservative mapping methodology employed.
Last week, a plaintiff filed a proposed class action against the NFL over its automatic renewal practices. The plaintiff alleges that the company used deceptive practices to automatically subscribe its Game Pass users to a new streaming service, NFL+, without their clear knowledge or consent, and that the NFL later made it difficult for them to cancel. It’s a little hard to tell from the complaint exactly what happened, but the gist of the argument is familiar.