--- title: Ad Law News and Views - October 29 2022 date: 2022-10-29T00:00:00-04:00 author: Import Bot canonical_url: "https://www.kelleydrye.com/viewpoints/newsletters/ad-law-news-and-views/ad-law-news-and-views-october-29-2022" section: Newsletter Issues --- # Ad Law News and Views - October 29 2022 October 29, 2022 ### IN THE NEWS AND LATEST UPDATES Get these and other stories in real time when you subscribe to the Ad Law Access blog [here](https://communications.kelleydrye.com/e/3u0qctu0ijfbgsw) or visit the Advertising and Privacy Law Resource Center [here](https://communications.kelleydrye.com/e/lmuickcfugkppq). #### [Breaking Up with Celebrities](https://communications.kelleydrye.com/e/mqu2um0e45noq) 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.#### [Blurred Lines: A Rundown on the FTC Workshop ​“Protecting Kids from Stealth Advertising in Digital Media”](https://communications.kelleydrye.com/e/ebug9bcujzepag) As we recently blogged [here](https://communications.kelleydrye.com/e/xkeoojxyaml6mlw), 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](https://communications.kelleydrye.com/e/lsuybo7bx3zcmw).” 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](https://communications.kelleydrye.com/e/rik2lzonpvb4xw) on October 19 on ​“Protecting Kids from Stealth Advertising in Digital Media.”#### [FTC Explores New Rule to Combat Fake Reviews](https://communications.kelleydrye.com/e/nr0uxwogu3klv9a) The FTC has made it a priority to combat fake and misleading reviews. For example, just this year alone, the FTC announced a [settlement](https://communications.kelleydrye.com/e/rsessorhyffrpsq) with a retailer over its failure to post negative reviews, announced a [settlement](https://communications.kelleydrye.com/e/miuabeub0wlgriw) with another retailer over its failure to disclose that reviews were incentivized, partnered with six states to file a [lawsuit](https://communications.kelleydrye.com/e/u0y4sxf0n4ly8q) against a company that allegedly purchased fake reviews, and [proposed changes](https://communications.kelleydrye.com/e/bue2uke2kxxj3q) to the Endorsement Guides that would provide more detailed guidance on these practices.#### [Update on Discrimination and Unfairness – The FTC’s Case Against Passport Automotive Group](https://communications.kelleydrye.com/e/dpeaxo7lixwmw) In late September, we [blogged](https://communications.kelleydrye.com/e/40ixoufcuw7cg) 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.#### [Beverage Makers Served A Reminder By Kombucha False Advertising Case](https://communications.kelleydrye.com/e/hy0wttuhuuxakvw) 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](https://communications.kelleydrye.com/e/njksq2vnssyvkxq), 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.#### [“An Arrow Has Found its Target”: Federal Appeals Court Deems CFPB Funding Method Unconstitutional, Invalidating Payday Lending Rule](https://communications.kelleydrye.com/e/5kukwhqpnwydlwa) 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.#### [50 Cents, a Euphemistic Eggplant, and the Right of Publicity](https://communications.kelleydrye.com/e/m0azazsawdqmpq) Celebrities generally don’t like when companies use their images or names without permission. For example, Jennifer Love Hewitt [didn’t love](https://communications.kelleydrye.com/e/hk2mnaehy8r50a) when a company used her image to promote a vitamin spray, and Michael Jordan seemed [pretty upset](https://communications.kelleydrye.com/e/ubkat8hkz5cggcw) 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’s Policy Statements, Reports, and Warning Letters: Why Are There So Many?](https://communications.kelleydrye.com/e/tfk8r1anvkwxqq) 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](https://communications.kelleydrye.com/e/xvee23sb5gg9twq), [data brokers](https://communications.kelleydrye.com/e/aqky4483jyscyw), [mobile payments](https://communications.kelleydrye.com/e/fkuof4u8yvfrzg), and the [internet of things](https://communications.kelleydrye.com/e/ze0qpaildnx45ja); policy statements on [deceptively formatting advertisements](https://communications.kelleydrye.com/e/y00ullloec26ojq) and [homeopathic drug claims](https://communications.kelleydrye.com/e/6fkael87wzztzcw); and warning letters to a range of companies making health claims (see [here](https://communications.kelleydrye.com/e/ksuiwyphewia0ew), [here](https://communications.kelleydrye.com/e/hukd1um6kffw), and [here](https://communications.kelleydrye.com/e/3l06bgr4rv9ubjw), for instance).#### [California Bans PFAS ​“Forever Chemicals” in Clothing, Textiles, and Cosmetics](https://communications.kelleydrye.com/e/uzkcebfentps0pw) California joined the [growing list of states to ban](https://communications.kelleydrye.com/e/k1k6dlvzlekidtq) 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.#### [Washington AG Signals Enforcement on Automatic Renewals](https://communications.kelleydrye.com/e/yegzarpc9rctmw) Earlier this week, we [posted](https://communications.kelleydrye.com/e/k02c0iedcsddea) 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](https://communications.kelleydrye.com/e/tuaghg4pakchvw)” 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.#### [New Study Identifies Over 57,000 Sites ​“Presumptively Contaminated” with PFAS](https://communications.kelleydrye.com/e/es0kqkynd4v5f3q) 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.#### [NFL Hit with Automatic Renewal Lawsuit (and Hyperbole)](https://communications.kelleydrye.com/e/k02c0iedcsddea) 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. - Share this entry - - - - - [ View entry pdf ](https://s3.amazonaws.com/cdn.kelleydrye.com/content/uploads/pdf-snapshots/ad-law-news-and-views-october-29-2022-20230913222652.pdf) ### Related Services - [California Consumer Privacy Act (CCPA)](https://www.kelleydrye.com/trending/california-consumer-privacy-act-ccpa) - [Dietary Supplements and Functional Foods](https://www.kelleydrye.com/industries/dietary-supplements-and-functional-foods) - [Consumer Class Action Defense](https://www.kelleydrye.com/practices/consumer-class-action-defense) - [Advertising and Marketing](https://www.kelleydrye.com/practices/advertising-and-marketing) - [Antitrust](https://www.kelleydrye.com/practices/antitrust) - [Consumer Product Safety Regulation](https://www.kelleydrye.com/practices/consumer-product-safety-regulation) - [Privacy and Information Security](https://www.kelleydrye.com/practices/privacy-and-information-security) - [Food and Drug](https://www.kelleydrye.com/industries/food-and-drug)