Ad Law News and Views - September 21, 2023

Welcome back to Ad Law News and Views.

Summer Vacations, Upcoming Webinars and more!

The summer seemed to fly by. We hope your summer months were filled with time to relax and reset. Many of our Ad Law attorneys spent their summer vacations with loved ones in locations around the world. We invite you to play:


Your choices are:

  • Selinunte, Sicily
  • Wellfleet, MA
  • Fethiye, Turkey
  • Keystone, SD
  • Hilton Head Island, SC
  • Adirondack Mountains, NY
  • Yarmouth, MA
  • Paris, France
  • Arizona River
  • Rehoboth Beach, DE

You may find the answers at the bottom of this newsletter.

IAPP Privacy. Security. Risk.

The IAPP PSR Conference will be held in San Diego, October 5 – 6, 2023. If you are attending the conference, we invite you to join us at several sessions where Kelley Drye attorneys are on the panel.

  • Thursday, October 5 – Generative AI: Privacy and Ethical Considerations for Your Business, Alysa Hutnik
  • Thursday, October 5 – Don’t Let Your PIA be a PITA! Reinvigorate Your Approach to Privacy Assessments, Aaron Burstein

  • Friday, October 6 – A Clean Start for Marketing and Advertising with First-Party Data
  • Friday, October 6 – Balancing the Risks and Rewards of Consumer Location, Laura VanDruff

We also invite you to participate in a pre-conference workshop, held on October 4 from 12:00 p.m. – 4:30 p.m. PT at the Pendry Hotel, where we will discuss we discuss data deletion, sensitive personal information, and data protection impact assessments. This workshop is highly collaborative and interactive.



Wednesday, September 27, 2023 at 2:00 pm ET

Navigating Critical Components of any Privacy Program

Companies are prioritizing privacy now more than ever. Understanding the many elements needed in an effective privacy program to manage compliance and mitigate risks is vital.

Kelley Drye invites you to join us on Wednesday, September 27, from 2:00 p.m. – 3:00 p.m. for a webinar: Navigating Critical Components of any Privacy Program. Tune in as we share practical insights on some of the most pressing privacy program topics.

  • State Privacy Laws – Navigating the Onslaught of New Laws
    • Where do we stand?
    • What can we predict?
  • Sensitive Personal Information
    • Legal trends
    • Spotlight on particular types of SPI
    • Practical tips
  • Data Protection Impact Assessment
    • What DPIAs are and where and when they are required
    • Required elements
    • Essential Considerations
  • Data Deletion
    • Right to delete
    • Exceptions to deletion requirement
    • Develop a retention policy


Thursday, September 28, 2023 at 2:45 pm PT

Embracing the Beauty of New Technologies While Avoiding the Dangers of Data Privacy Violations

A panel of legal professionals will analyze the industry’s response to the use of AI, ML, AR, VR technologies and the Metaverse, identify privacy and ethics concerns associated biometric technologies and try-on tools, explore state legislation such as the California Consumer Privacy Act (CCPA), the Biometric Information Privacy Act (BIPA) and related enforcement actions, and more.


Thursday, October 19, 2023 at 2:00 pm ET

New Hampshire Attorney General’s Office

Guest Speakers:

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



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.

FTC Confirmation Hearings Promise a Return to Bipartisanship

Those who were looking for big fireworks at yesterday’s confirmation hearings for three FTC Commissioners were likely disappointed by the relatively business-as-usual nature of the proceedings. Yes, certain Senators decried the low morale at the agency, alleged ethical breaches, continuing telework, and loss of the FTC’s characteristic bipartisanship. However, those remarks were not unexpected and were generally directed at Chair Lina Khan, who was in the audience but not in the witness chair.

State AGs and CFPB Stop Tempoe’s Rhythm

A bipartisan coalition of 42 Attorneys General, led by Iowa, Nebraska, and Tennessee, and the Consumer Financial Protection Bureau (CFPB) announced a $35 million settlement with Tempoe LLC, a specialty consumer finance company. The multistate settlement resolves claims that the company’s marketing sales practices misled consumers that they signed up for an installment plan or credit sale to purchase personal goods and services, when it fact they ended up leasing the items.

FTC Recommends Sharpening Blurred Lines When Advertising to Kids

In October, we posted about the FTC’s day-long workshop on ​“Protecting Kids from Stealth Advertising in Digital Media” and wondered what the FTC might be planning. Last week, we got an answer when the FTC released a ​“Staff Perspective” on Protecting Kids from Stealth Advertising in Digital Media. With a foreword written by Sam Levine, Director of the FTC’s Bureau of Consumer Protection, the staff recommends advertisers implement five key practices to protect kids from the harms of ​“stealth advertising.”

California Just Passed SB 362: Whatever You Think About the Merits of the Law, It’s a Big Deal

As we’ve discussed here, data brokers have been in the hot seat lately, with the enactment of new state data broker registry laws, aggressive enforcement by the FTC, a looming rulemaking by the CFPB to extend the FCRA’s reach to a broader class of data brokers, multiple federal bills to restrict data broker sales, and a recent meeting at the White House to discuss ​“harmful data broker practices” and provide further impetus for regulation.

Texas Court Puts Hold on CFPB’s Use of Unfairness Authority to Include ​“Discrimination”

As the Supreme Court deliberates over the Fifth Circuit’s ruling that the CFPB’s funding method is unconstitutional, another court in the Fifth Circuit dealt a blow to the CFPB’s aggressive agenda. On Friday, the District Court for the Eastern District of Texas invalidated the Bureau’s March 2022 updates to its examination manual that instructed CFPB examiners to determine whether financial institutions and service providers adequately protect against discrimination, including disparate impact. If it holds in likely appeals, the decision could have a far-reaching impact on both the CFPB’s and the FTC’s attempts to use their unfairness authority to bring enforcement to remedy perceived discriminatory practices, as well as other attempts by both agencies to broadly interpret statutory grants of authority and use them in novel and untested ways.

Can’t Lie About Your AI: The FTC’s Most Recent Case with AI Allegations

The FTC is not holding its breath on whether Congress will enact AI legislation. Instead, as we have previously reported, the FTC is relying on its own toolkit and has warned businesses that false or unsubstantiated claims related to AI could run afoul of the FTC Act.

Practical Privacy: Lessons from the Front Lines

With the continuing onslaught of state privacy laws, it’s easy to become overwhelmed by the number of new legal obligations while also trying to stay focused on identifying and mitigating the most pressing legal and business risks. Over the past couple of months, we’ve had the opportunity to meet with privacy professionals to hear about their top challenges and offer some practical perspectives of our own.

FDA’s Draft Guidance on Cosmetics Registration and Listing: A Good Reminder of End-of-Year Deadlines

Earlier this month, in a step toward implementing the Modernization of Cosmetics Regulation Act of 2022 (MoCRA), FDA issued a draft guidance document titled ​“Registration and Listing of Cosmetic Product Facilities and Products: Guidance for Industry.” For those who may be new to MoCRA, this legislation significantly overhauled FDA oversight of the cosmetics industry by requiring manufacturers, packers, and distributors, to comply with a range of new standards, including mandatory product and facility registration, creation of safety substantiation information, and adverse event reporting subject to a December 2023 deadline (per the one-year timeframe set per statute). Additional compliance measures, including issuance of good manufacturing practices regulations, updated fragrance allergen disclosures, and domestic contact labeling are expected in 2024 and thereafter.

FTC and Six States Announce Settlement Over Fake Reviews and Claims

A year ago, the FTC and six states filed a lawsuit against Roomster and its owners, alleging that they had posted ​“tens of thousands of fake positive reviews to bolster their false claims that properties listed on their Roomster platform are real, available, and verified.” At the same time, the regulators announced a settlement with an individual (doing business as AppWinn) who allegedly sold Roomster many of the fake reviews. Today, the FTC and states announced a settlement Roomster and its owners that includes some notable provisions.

In Your Face: Connecticut District Court Denies Motion To Dismiss in Coppertone ​“FACE” Sunscreen False Ad Case

A few months ago when sun-seeking consumers were eagerly anticipating the start of summer, we wrote about a consumer false advertising case involving Beiersdorf’s Coppertone sunscreen brand. In that case, plaintiff Tonya Akes, a consumer, sued Beiersdorf, Inc., maker of Coppertone sunscreen, alleging that Beiersdorf engaged in deception because it sold the SPF 50 Coppertone Sport Mineral Face sunscreen, which she alleges she believed was ​“specifically designed” for use on the face based on the front-of-pack claims, at twice the price as the regular Coppertone Sport Mineral sunscreen, despite the formulas being identical.

NAD Addresses Apples and Oranges in Price Claims

Google recently ran two commercials for its YouTube TV service, each of which ended with the following tagline: ​“More than cable. For $600 less than cable.” A disclosure at the bottom of the screen explained: ​“Annual average savings based on a study by SmithGeiger of the published cost of comparable standalone cable in the top 50 Nielsen DMAs, including all fees, taxes, promotion pricing, DVR box rental and service fees, and a 2nd cable box.”

Mounting Focus on Data Brokers: Is More Regulation Coming?

During the past year, there’s been a flurry of regulatory activity related to data brokers. Whether in Congress or state legislatures, at federal agencies or the White House, many policymakers are pushing in the direction of increased regulation. For those not following this issue closely, here’s a snapshot of some key developments, starting with some history.

Answers to: Guess the Vacation Location

1 – Arizona River

2 – Yarmouth, MA

3 – Paris, France

4 – Selinunte, Sicily

5 – Hilton Head Island, SC

6 – Keystone, SD

7 – Wellfleet, MA