WELCOME BACK TO AD LAW NEWS AND VIEWS.
Congratulations to Senior Associate Jayson Lewis on being named to the
2023 Law 360 Cybersecurity& Privacy Editorial Board. As a
member of the board, Jayson will provide feedback on Law360's
coverage and expert insight on how best to shape future coverage.
Read more here.
Be sure to register for our upcoming webinars, Hot Topics in Green Marketing and INFORM Consumers Act – What Online
Marketplaces and Sellers Need to Know.
See below for more information on topics, dates, and registration
details.
UPCOMING EVENTS
Wednesday, May 31, 2023 at 12:00 pm ET
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
Tuesday, June 13, 2023 at 12:00 pm ET
INFORM Consumers Act – What Online Marketplaces and Sellers Need to Know
In late June, a brand new law takes effect that could
significantly affect online marketplaces and the companies that
sell products there. As we discuss here, the Integrity, Notification, and Fairness
in Online Retail Marketplaces for Consumers Act (INFORM Consumers
Act) requires online marketplaces to:
(1) collect and verify certain information from "high-volume
third party sellers,"
(2) suspend sellers that fail to comply,
(3) protect the data they collect from sellers, and
(4) make various disclosures to consumers.
The new law charges the FTC, the state AGs, and "other state
officials" with enforcement; gives the FTC rulemaking
authority; and authorizes substantial civil penalties for
violations.
Please join us for a timely webinar on this topic. Partner Kate White will moderate a discussion with Of
Counsel and Senior Policy Advisor for Consumer Protection Jessica Rich and Partner Paul Singer about what the law requires, how it
will affect online marketplaces and sellers, and how we anticipate
the FTC and AGs will enforce it.
REGISTER HERE
IN THE NEWS AND LATEST UPDATES
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AGs and AI: Transparency is Key
As we have previously reported, State Attorneys General
have joined other enforcers in addressing the latest AI
technology. At the recent 2023 NAAG Consumer Protection Spring
Conference, two separate panels discussed how the AGs are focusing
on AI.
H&M Wins Dismissal in Greenwashing Suit
Abraham Lizama purchased a turquoise sweater from H&M's
"Conscious Choice" collection, a line of clothing
"created with a little extra consideration for the
planet" which generally include "at least 50% of more
sustainable materials." Although we imagine that Lizama looked
quite handsome in his sweater, he soon regretted his purchase and
filed a class action against the retailer, accusing it of
greenwashing because the sweater did not meet his view about
what's good for the environment.
Earlier this week, FDA issued draft guidance for staff updating the
agency's existing enforcement policy regarding major
food allergen labeling and cross-contact prevention. The updated
guidance reflects the addition of sesame as a major allergen,
discusses how allergens must be disclosed when used as an
ingredient in packaged food, and details the preventive controls
provisions in 21 CFR § 117 applicable to preventing allergen
cross contact. The updated guidance also details the circumstances
in which failure to properly declare allergens or prevent
cross-contact render a food misbranded or adulterated. Stakeholders
have until July 17th to submit comments.
Now and in 10: AG Consumer Priorities and Challenges Today and Tomorrow
Last week, State AG executives and consumer protection staff
gathered for the 2023 NAAG Consumer Protection Spring Conference.
After a warm welcome to Florida by John Guard, Chief Deputy
Attorney General in Florida, first on the agenda was the
much-anticipated discussion with Attorney General John Formella of
New Hampshire and AG executives Lacey Mase, Chief Deputy in
Tennessee, Jennifer Levy, First Assistant Attorney General in New
York, and Nathan Blake, Colorado Deputy Attorney General for
Consumer Protection. The panel was moderated by prominent Consumer
Protection figures Jeff Hill, Executive Counsel in Tennessee and
Susan Ellis, Division Chief of the Consumer Protection Division in
Illinois.
In the past couple years, the Federal Trade Commission has gone
0 for 2 before the Supreme Court. In AMG, the Court found that Section
13(b) of the FTC Act does not provide the Commission with the
authority to obtain equitable monetary relief. Last month, in Axon, the Court held that parties need
not wait until the conclusion of administrative proceedings before
challenging the constitutionality of the FTC's structure, but
may bring their complaints to district courts. Given this recent
track record, the Commission probably wasn't thrilled to find
itself before the Fifth Circuit, defending against constitutional
challenges raised by Traffic Jam Events, and its owner, David
Jeansonne.
Google to Pay $8 M to Settle with Texas Over DJ Endorsements
In January 2022, the Texas Attorney General filed a lawsuit against Google alleging that the company engaged iHeartMedia DJs to provide endorsements for its Pixel 4 phone, even though they had never used it. In November 2022, the FTC and several state attorneys general announced settlements with Google and iHeartMedia over the same conduct. Although Texas settled with iHeartMedia, it continued to separately pursue its case against Google. Last week, the parties agreed to a settlement.
The FTC is Not the Only One Tracking Your Use of Health Information
The FTC has made news recently with its recent enforcement
activity regarding companies' alleged disclosures of consumer
health data, as detailed in our recent post FTC to Advertisers: We're tracking Your Use of
Health information, and as evidenced by the FTC's tentative
agenda for its next open meeting later this month on potential
rulemaking regarding amending the Health Data Breach Notification
Rule (a point which is curious given its prior policy statement
already attempting to expand its scope, which we discussed here).
Retailer to Pay $197 Million to Settle Pricing Claims
Over the past few weeks, we've posted about a few cases
involving pricing claims, including a post discussing a lawsuit over a grocer's
BOGO offers, a post discussing a lawsuit over major
retailer's frequent sales, and a post discussing an NAD challenge over claims
that a smaller retailer made about its sales. If those didn't
catch your attention, today's post about a $197 million
settlement should.
New Law Governing Online Platforms And Sellers Takes Effect In June – Are You Ready?
On June 27, 2023, "online marketplaces" (i.e., online
selling platforms like Amazon and EBay) will have some brand new
obligations. So will many of the third party sellers that operate
on these platforms.
State AGs and Consumer Protection: What We Learned from . . . Connecticut Part I
Our State AG webinar series continues with Connecticut Attorney
General William Tong and Chief of the Privacy Consumer Protection
Section Michele Lucan. During our webinar, the Connecticut AG's
office described their structure and the tools available to them to
enforce the state's consumer protection laws. In particular, as
the fifth state to pass comprehensive privacy
legislation, AG Tong highlighted the AG office's privacy
priorities and agenda which we will focus on here in Part I. We
will explore the more general consumer protection topics in Part
II. In case you missed it, here is a recording of the webinar.
Advertising Lessons from the Survival Industry
My Patriot Supply (or "MPS") and 4Patriots both make
long-term survival food kits and related products. If a natural
disaster strikes, if AI-powered bots wreak havoc on humanity, or if
you just want to binge-watch your favorite shows and tune out the
rest of the world, these companies have your back. But they
don't have each other's backs.
Two-Faced? Coppertone Case Tests Whether Factually True Claims Are Deceptive
Can claims that are factually true still be deceptive? This is
the question before a Connecticut federal court. Last summer, 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.
FTC Attempts End Run to Ban Meta from "Monetizing" Minors' Data
The FTC took unprecedented action yesterday when it moved to impose what it describes as a "blanket prohibition" preventing the company from monetizing young people's data. The FTC contends that this prohibition is warranted as a result of repeated violations of Meta's 2020 consent order ("Proposed Order").
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