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SENATE COMMERCE COMMITTEE REPUBLICANS INCLUDE 13(B) FIX IN Late last week, Senate Commerce Committee Chairman Roger Wicker (R-MS), along with Senators John Thune (R-SD), Deb Fischer (R-NE), and Marsha Blackburn (R-TN), introduced S. 4626, the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act. The comprehensive privacy bill was years in the making and follows a discussion draft released TCCWNA | AD LAW ACCESS Today, the New Jersey Supreme Court drove a stake into the many class actions alleging claims under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”). That law provides for $100 in damages whenever an “aggrieved consumer” demonstrates that a contract or other document contains provisions that violate any FLORIDA TAKES PAGE OUT OF TCPA’S BOOK WITH NEW LEGISLATION The Florida legislature recently passed CS/SB 1120 updating and significantly expanding the state’s existing telemarketing laws, the Florida Telemarketing Act and the Florida Do Not Call Act.Many of the new provisions are similar to the TCPA, including, most importantly, adding a private cause of action for any violations of the Florida Do Not Call Act and requiring prior express written PRIVACY LITIGATION TREND: THE LATEST ON SESSION REPLAY Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General SUPREME COURT FINDS SECTION 13(B) DOES NOT ALLOW FOR This morning, the Supreme Court released its long-awaited opinion in AMG Capital Management v. FTC.Judge Breyer issued the decision for a unanimous Court. As we had predicted following oral arguments, the Supreme Court found that Section 13(b) of the FTC Act does not allow for monetary remedies.. The Court’s conclusion, stated at the outset, is straightforward and unambiguous: FASHION SUSTAINABILITY CLAIMS CAN’T SHAKE SCRUTINY With Earth Day in April, it’s not a surprise that sustainability claims in the clothing industry have been in the limelight this spring. Actions in both the U.S. and overseas are a reminder to fashion retailers of the importance of substantiating sustainability claims. Recently lobbying group PoliticallyInFashion partnered with 40 organizations and individuals to submit a letter to the FTC CONGRESSIONAL DEMOCRATS SOUND THE ALARM, RALLY IN AN Yesterday, less than a week after the Supreme Court’s unanimous decision in AMG Capital Management v. FTC, two Congressional committees zeroed in on the FTC’s hollowed-out Section 13(b) authority, the fate of which now lies squarely with Congress.Leading Democrats in both chambers have expressed the urgent need for legislation to clarify and strengthen the statute in AMG’s wake. DIETARY SUPPLEMENT AND PERSONAL CARE PRODUCTS REGULATORY Welcome to our monthly digest of litigation and regulatory highlights impacting the personal care product and dietary supplement industry. April saw a re-emphasis on restriction of COVID-related claims in advertisements for supplements and therapies, developments in various class action cases, including a win for consumers challenging hand sanitizer’s claims of killing 99.99% of germs and a FURTHER AMENDMENTS TO CCPA REGULATIONS ARE APPROVED AND IN California’s Office of Administrative Law approved further revisions to the Attorney General’s CCPA regulations on March 15, 2021. The revisions went into effect upon approval. In substance, the revisions are identical to the fourth set of modifications the Attorney General proposed on December 10, 2020, and make the following changes: UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION The Honorable Frank Pallone, Jr. The Honorable Greg Walden The Honorable Roger Wicker The Honorable Maria Cantwell Page 3 Section 13(b) of the FTC Act is the agency’s primary and most effective wayof returning to
WHAT HAPPENS TO THE FTC UNDER A BIDEN-HARRIS Now that Joe Biden has been declared the winner of this year’s presidential election, many practitioners are beginning to turn their focus to how a Biden Administration will reshape federal agencies. This post takes a look at changes that may be in store for the FTC.. For much of the past few years, the FTC has been at the center of vigorous debates about the exercise of its competition and CHOPRA NAVIGATES QUESTIONS AND PREDICTS PRIORITIES AT President Biden’s nominee to serve as CFPB Director, Rohit Chopra, today testified in front of the Senate Banking Committee about his potential regulatory and enforcement priorities as head of the consumer finance regulator.As we previously discussed, President Biden tapped Chopra, three years into his tenure as FTC Commissioner, to serve as Director of the CFPB. FLORIDA TAKES PAGE OUT OF TCPA’S BOOK WITH NEW LEGISLATION The Florida legislature recently passed CS/SB 1120 updating and significantly expanding the state’s existing telemarketing laws, the Florida Telemarketing Act and the Florida Do Not Call Act.Many of the new provisions are similar to the TCPA, including, most importantly, adding a private cause of action for any violations of the Florida Do Not Call Act and requiring prior express written PRIVACY LITIGATION TREND: THE LATEST ON SESSION REPLAY Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General SUPREME COURT FINDS SECTION 13(B) DOES NOT ALLOW FOR This morning, the Supreme Court released its long-awaited opinion in AMG Capital Management v. FTC.Judge Breyer issued the decision for a unanimous Court. As we had predicted following oral arguments, the Supreme Court found that Section 13(b) of the FTC Act does not allow for monetary remedies.. The Court’s conclusion, stated at the outset, is straightforward and unambiguous: FASHION SUSTAINABILITY CLAIMS CAN’T SHAKE SCRUTINY With Earth Day in April, it’s not a surprise that sustainability claims in the clothing industry have been in the limelight this spring. Actions in both the U.S. and overseas are a reminder to fashion retailers of the importance of substantiating sustainability claims. Recently lobbying group PoliticallyInFashion partnered with 40 organizations and individuals to submit a letter to the FTC CONGRESSIONAL DEMOCRATS SOUND THE ALARM, RALLY IN AN Yesterday, less than a week after the Supreme Court’s unanimous decision in AMG Capital Management v. FTC, two Congressional committees zeroed in on the FTC’s hollowed-out Section 13(b) authority, the fate of which now lies squarely with Congress.Leading Democrats in both chambers have expressed the urgent need for legislation to clarify and strengthen the statute in AMG’s wake. DIETARY SUPPLEMENT AND PERSONAL CARE PRODUCTS REGULATORY Welcome to our monthly digest of litigation and regulatory highlights impacting the personal care product and dietary supplement industry. April saw a re-emphasis on restriction of COVID-related claims in advertisements for supplements and therapies, developments in various class action cases, including a win for consumers challenging hand sanitizer’s claims of killing 99.99% of germs and a FURTHER AMENDMENTS TO CCPA REGULATIONS ARE APPROVED AND IN California’s Office of Administrative Law approved further revisions to the Attorney General’s CCPA regulations on March 15, 2021. The revisions went into effect upon approval. In substance, the revisions are identical to the fourth set of modifications the Attorney General proposed on December 10, 2020, and make the following changes: UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION The Honorable Frank Pallone, Jr. The Honorable Greg Walden The Honorable Roger Wicker The Honorable Maria Cantwell Page 3 Section 13(b) of the FTC Act is the agency’s primary and most effective wayof returning to
WHAT HAPPENS TO THE FTC UNDER A BIDEN-HARRIS Now that Joe Biden has been declared the winner of this year’s presidential election, many practitioners are beginning to turn their focus to how a Biden Administration will reshape federal agencies. This post takes a look at changes that may be in store for the FTC.. For much of the past few years, the FTC has been at the center of vigorous debates about the exercise of its competition and CHOPRA NAVIGATES QUESTIONS AND PREDICTS PRIORITIES AT President Biden’s nominee to serve as CFPB Director, Rohit Chopra, today testified in front of the Senate Banking Committee about his potential regulatory and enforcement priorities as head of the consumer finance regulator.As we previously discussed, President Biden tapped Chopra, three years into his tenure as FTC Commissioner, to serve as Director of the CFPB. SUPREME COURT FINDS SECTION 13(B) DOES NOT ALLOW FOR This morning, the Supreme Court released its long-awaited opinion in AMG Capital Management v. FTC.Judge Breyer issued the decision for a unanimous Court. As we had predicted following oral arguments, the Supreme Court found that Section 13(b) of the FTC Act does not allow for monetary remedies.. The Court’s conclusion, stated at the outset, is straightforward and unambiguous: DIETARY SUPPLEMENT AND PERSONAL CARE PRODUCTS REGULATORY Welcome to our monthly digest of litigation and regulatory highlights impacting the personal care product and dietary supplement industry. April saw a re-emphasis on restriction of COVID-related claims in advertisements for supplements and therapies, developments in various class action cases, including a win for consumers challenging hand sanitizer’s claims of killing 99.99% of germs and a COLORADO PASSES PRIVACY BILL: HOW DOES IT STACK UP AGAINST 14 hours ago · ColoPA: VCDPA: CCPA: Thresholds to Applicability: Conduct business in CO or produce products or services targeted to CO and (a) control or process personal data of at least 100,000 consumers; or (b) derive revenue or receive a discount on the price of goods or service from selling personal data or controls personal data of at least 25,000 consumers WHAT HAPPENS TO THE FTC UNDER A BIDEN-HARRIS Now that Joe Biden has been declared the winner of this year’s presidential election, many practitioners are beginning to turn their focus to how a Biden Administration will reshape federal agencies. This post takes a look at changes that may be in store for the FTC.. For much of the past few years, the FTC has been at the center of vigorous debates about the exercise of its competition and 2021 WILL BRING EXPANDED PROTECTIONS FOR PUBLICITY AND Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General AMAZON PAYS $2 MILLION TO SETTLE REFERENCE PRICE Shortly after the state of California filed a lawsuit against Amazon alleging deceptive prices, Amazon agreed to pay $2 million in penalties and restitution.. Under the stipulated judgment, Amazon is restrained from using an advertised reference price based on a formula, algorithm, or other method that produces misleading or false results until April 1, 2024. FTC AND RIGHT TO REPAIR Companies watching the “right to repair” legislation proposed in some states should not lose sight of the federal landscape. Last week the FTC released a bipartisan report concluding that there is “scant evidence to support manufacturers’ justifications for repair restrictions.” This will likely add momentum to groups pushing for legislation requiring companies, particularly SMART (CA) TVS ARE LISTENING: CALIFORNIA ASSEMBLY PASSES Smart (CA) TVs Are Listening: California Assembly Passes Voice Recognition Device Bill Headed to Senate. The California Assembly recently passed AB-1262 updating an existing law to further limit the use of personal information collected through connected TVs and smart speaker devices. Specifically, the bill prohibits: CCPA UPDATE: ADTECH OPTIONS TO AVOID A “SALE” AND WHAT CCPA Update: AdTech Options to Avoid a “Sale” and What Google Has to Say About It. Last Monday, Google released its answer to the CCPA: a new “service provider” contract . Given Google’s widely used advertising and analytics technologies, Google’s new contract has the potential to influence how website publishers, advertisers, the READ THIS BEFORE SCANNING A DRIVER'S LICENSE IN NEW JERSEY Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General FLORIDA TAKES PAGE OUT OF TCPA’S BOOK WITH NEW LEGISLATION The Florida legislature recently passed CS/SB 1120 updating and significantly expanding the state’s existing telemarketing laws, the Florida Telemarketing Act and the Florida Do Not Call Act.Many of the new provisions are similar to the TCPA, including, most importantly, adding a private cause of action for any violations of the Florida Do Not Call Act and requiring prior express written PRIVACY LITIGATION TREND: THE LATEST ON SESSION REPLAY Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General AMAZON PAYS $2 MILLION TO SETTLE REFERENCE PRICE Shortly after the state of California filed a lawsuit against Amazon alleging deceptive prices, Amazon agreed to pay $2 million in penalties and restitution.. Under the stipulated judgment, Amazon is restrained from using an advertised reference price based on a formula, algorithm, or other method that produces misleading or false results until April 1, 2024. CONGRESSIONAL DEMOCRATS SOUND THE ALARM, RALLY IN AN Yesterday, less than a week after the Supreme Court’s unanimous decision in AMG Capital Management v. FTC, two Congressional committees zeroed in on the FTC’s hollowed-out Section 13(b) authority, the fate of which now lies squarely with Congress.Leading Democrats in both chambers have expressed the urgent need for legislation to clarify and strengthen the statute in AMG’s wake. FURTHER AMENDMENTS TO CCPA REGULATIONS ARE APPROVED AND IN California’s Office of Administrative Law approved further revisions to the Attorney General’s CCPA regulations on March 15, 2021. The revisions went into effect upon approval. In substance, the revisions are identical to the fourth set of modifications the Attorney General proposed on December 10, 2020, and make the following changes: FASHION SUSTAINABILITY CLAIMS CAN’T SHAKE SCRUTINY With Earth Day in April, it’s not a surprise that sustainability claims in the clothing industry have been in the limelight this spring. Actions in both the U.S. and overseas are a reminder to fashion retailers of the importance of substantiating sustainability claims. Recently lobbying group PoliticallyInFashion partnered with 40 organizations and individuals to submit a letter to the FTC UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION The Honorable Frank Pallone, Jr. The Honorable Greg Walden The Honorable Roger Wicker The Honorable Maria Cantwell Page 3 Section 13(b) of the FTC Act is the agency’s primary and most effective wayof returning to
SUPREME COURT FINDS SECTION 13(B) DOES NOT ALLOW FOR This morning, the Supreme Court released its long-awaited opinion in AMG Capital Management v. FTC.Judge Breyer issued the decision for a unanimous Court. As we had predicted following oral arguments, the Supreme Court found that Section 13(b) of the FTC Act does not allow for monetary remedies.. The Court’s conclusion, stated at the outset, is straightforward and unambiguous: CHOPRA NAVIGATES QUESTIONS AND PREDICTS PRIORITIES AT President Biden’s nominee to serve as CFPB Director, Rohit Chopra, today testified in front of the Senate Banking Committee about his potential regulatory and enforcement priorities as head of the consumer finance regulator.As we previously discussed, President Biden tapped Chopra, three years into his tenure as FTC Commissioner, to serve as Director of the CFPB. CCPA UPDATE: ADTECH OPTIONS TO AVOID A “SALE” AND WHAT CCPA Update: AdTech Options to Avoid a “Sale” and What Google Has to Say About It. Last Monday, Google released its answer to the CCPA: a new “service provider” contract . Given Google’s widely used advertising and analytics technologies, Google’s new contract has the potential to influence how website publishers, advertisers, the FLORIDA TAKES PAGE OUT OF TCPA’S BOOK WITH NEW LEGISLATION The Florida legislature recently passed CS/SB 1120 updating and significantly expanding the state’s existing telemarketing laws, the Florida Telemarketing Act and the Florida Do Not Call Act.Many of the new provisions are similar to the TCPA, including, most importantly, adding a private cause of action for any violations of the Florida Do Not Call Act and requiring prior express written PRIVACY LITIGATION TREND: THE LATEST ON SESSION REPLAY Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General AMAZON PAYS $2 MILLION TO SETTLE REFERENCE PRICE Shortly after the state of California filed a lawsuit against Amazon alleging deceptive prices, Amazon agreed to pay $2 million in penalties and restitution.. Under the stipulated judgment, Amazon is restrained from using an advertised reference price based on a formula, algorithm, or other method that produces misleading or false results until April 1, 2024. CONGRESSIONAL DEMOCRATS SOUND THE ALARM, RALLY IN AN Yesterday, less than a week after the Supreme Court’s unanimous decision in AMG Capital Management v. FTC, two Congressional committees zeroed in on the FTC’s hollowed-out Section 13(b) authority, the fate of which now lies squarely with Congress.Leading Democrats in both chambers have expressed the urgent need for legislation to clarify and strengthen the statute in AMG’s wake. FURTHER AMENDMENTS TO CCPA REGULATIONS ARE APPROVED AND IN California’s Office of Administrative Law approved further revisions to the Attorney General’s CCPA regulations on March 15, 2021. The revisions went into effect upon approval. In substance, the revisions are identical to the fourth set of modifications the Attorney General proposed on December 10, 2020, and make the following changes: FASHION SUSTAINABILITY CLAIMS CAN’T SHAKE SCRUTINY With Earth Day in April, it’s not a surprise that sustainability claims in the clothing industry have been in the limelight this spring. Actions in both the U.S. and overseas are a reminder to fashion retailers of the importance of substantiating sustainability claims. Recently lobbying group PoliticallyInFashion partnered with 40 organizations and individuals to submit a letter to the FTC UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION The Honorable Frank Pallone, Jr. The Honorable Greg Walden The Honorable Roger Wicker The Honorable Maria Cantwell Page 3 Section 13(b) of the FTC Act is the agency’s primary and most effective wayof returning to
SUPREME COURT FINDS SECTION 13(B) DOES NOT ALLOW FOR This morning, the Supreme Court released its long-awaited opinion in AMG Capital Management v. FTC.Judge Breyer issued the decision for a unanimous Court. As we had predicted following oral arguments, the Supreme Court found that Section 13(b) of the FTC Act does not allow for monetary remedies.. The Court’s conclusion, stated at the outset, is straightforward and unambiguous: CHOPRA NAVIGATES QUESTIONS AND PREDICTS PRIORITIES AT President Biden’s nominee to serve as CFPB Director, Rohit Chopra, today testified in front of the Senate Banking Committee about his potential regulatory and enforcement priorities as head of the consumer finance regulator.As we previously discussed, President Biden tapped Chopra, three years into his tenure as FTC Commissioner, to serve as Director of the CFPB. CCPA UPDATE: ADTECH OPTIONS TO AVOID A “SALE” AND WHAT CCPA Update: AdTech Options to Avoid a “Sale” and What Google Has to Say About It. Last Monday, Google released its answer to the CCPA: a new “service provider” contract . Given Google’s widely used advertising and analytics technologies, Google’s new contract has the potential to influence how website publishers, advertisers, the CPRA UPDATE: CALPPA GETS STARTED WITH INAUGURAL MEETING 1 day ago · Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General FOOD INDUSTRY REGULATORY AND LITIGATION HIGHLIGHTS Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General WHAT HAPPENS TO THE FTC UNDER A BIDEN-HARRIS Now that Joe Biden has been declared the winner of this year’s presidential election, many practitioners are beginning to turn their focus to how a Biden Administration will reshape federal agencies. This post takes a look at changes that may be in store for the FTC.. For much of the past few years, the FTC has been at the center of vigorous debates about the exercise of its competition andNAD | AD LAW ACCESS
Welcome to our monthly digest of litigation and regulatory highlights impacting the personal care product and dietary supplement industry. April saw a re-emphasis on restriction of COVID-related claims in advertisements for supplements and therapies, developments in various class action cases, including a win for consumers challenging hand sanitizer’s claims of killing 99.99% of germs and a SECOND CIRCUIT LIMITS COPYRIGHT DAMAGES TO THOSE INCURRED Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General 2021 WILL BRING EXPANDED PROTECTIONS FOR PUBLICITY AND Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General FTC ANNOUNCES “OPERATION INCOME ILLUSION” TO CRACK DOWN ON The FTC today announced four new enforcement actions and one new settlement alleging deceptive income claims in violation of the FTC Act. The FTC noted that these actions are part of a broader initiative branded as “Operation Income Illusion,” which it described as a crackdown “against the operators of work-from-home and employment scams, pyramid schemes, investment scams, bogus coaching CALIFORNIA PRIVACY RIGHTS ACT (CPRA) Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General SMART (CA) TVS ARE LISTENING: CALIFORNIA ASSEMBLY PASSES Smart (CA) TVs Are Listening: California Assembly Passes Voice Recognition Device Bill Headed to Senate. The California Assembly recently passed AB-1262 updating an existing law to further limit the use of personal information collected through connected TVs and smart speaker devices. Specifically, the bill prohibits: DO YOUR SPONSORSHIP AGREEMENTS ADDRESS EVENT CANCELLATION Event cancellation insurance is typically designed to pay the event organizer for its lost profits or to reimburse it for refunds it has to pay to attendees or sponsors if the event is cancelled for reasons covered by the policy. When drafting your agreement, in addition to standard forms of coverage, consider exploring whether the eventSkip to content
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Updates on Advertising Law and Privacy Law Trends, Issues, andDevelopments
AD LAW ACCESS
Updates on Advertising Law and Privacy Law Trends, Issues, andDevelopments
FOOD INDUSTRY REGULATORY AND LITIGATION HIGHLIGHTS – APRIL AND MAY2021
By Kristi Wolff & JaclynMetzinger
on June 4, 2021
Posted in FDA , Food andDrug , FTC
, NAD
Welcome
to our April + May combined report on food litigation, regulatory trends and events. We have a lot to report in the food world, with a number of litigation currents starting to form, and some new waves building. Let’s see what happened….NEW FILINGS
CHEESY GOODNESS? General Mills was hit with five putative class actions challenging its Annie’s mac and cheese marketing representations that the product is “Made with Goodness” when, in fact, it contains potentially harmful chemicals known as ortho-phthalates which are linked to asthma, breast cancer and diabetes. The cases are pending in the Southern and Eastern Districts of New York and the Northern District of California. The Kraft Heinz Company was named in similar suits filed in the Northern District of California and the Northern Districtof Illinois.
SPARKLING WATER/SELTZER: A number of companies were named in putative class actions alleging that various sparkling water products misrepresented the nature of the flavoring agents used. For example, a complaint against Whole Foods (filed in the Southern District of New York) alleges that the Lemon Raspberry Italian Sparkling Mineral Water does not contain an appreciable amount real lemons or real raspberries. Similarly, a complaint against Kroger (filed in the Northern District of California) challenges the non-disclosure of artificial flavoring chemicals. Finally, Molson Coors Beverage Company was named in a class action alleging that its “Vizzy” brand hard seltzers are marketed as containing a significant amount of healthful qualities and nutrients such as vitamin C which, according to the complaint, falsely implies that alcoholic beverages could provide health benefits. MORE VANILLA: April and May saw two new vanilla filings, including a case against Prairie Farms Dairy, Inc., alleging that the defendant’s “Premium Vanilla” ice cream was falsely labeled as containing “natural colors and flavors” (Northern District of Illinois) and a case against Hostess alleging that its vanilla wafer products were falsely advertised as containing real vanilla (Missouri state court). MORE NATURAL: The past two months have seen a slew of new “natural” filings in the food industry. Such filings challenge of synthetic preservatives and other ingredients including citric acid (3 cases), ascorbic acid (1 case), artificial coloring (1 case), and monk fruit extract, which is alleged to be natural but processed with artificial solvents and additives (1 case). The filings were made across the country, including in Missouri state court (4 cases), the Central District of California (1 case), and the Southern District of Illinois (1 case). In addition to the natural allegations relating to monk fruit extract, a case against Chobani also challenges claims relating to “complete nutrition,” “advanced nutrition” and the use of a “+” symbol in connection with prebiotics and probiotics which, according to the complaint, falsely suggests that the product has more pre- and probiotics than other comparable foods. COFFEE, PLEASE: We have also seen an uptick in coffee-related class actions, with two actions alleging that ground coffee products artificially inflate the number of cups that can be made from their contents given the directions for use. DELIVERY FEES: April and May saw a continued trend of challenges relating to food delivery charges during the pandemic, with cases filed against GrubHub, alleged to have charged an undisclosed $2.50/delivery fee on top of its $9.99/month “Unlimited Free Delivery” for GrubHub+ users, and against Panera, alleged to have falsely promised a flat delivery charge on food deliveries ordered through Panera’s app and website. Both cases are pending in California state court. FOOD SETTLEMENTS Continue Reading Food Industry Regulatory and Litigation Highlights – April and May 2021EmailTweet
Like
& Alex Schneider
on June
3, 2021
Posted in California Consumer Privacy Act (CCPA),
California Privacy Rights Act (CPRA),
Privacy and Information Security,
Uncategorized
The California Privacy Rights Act (CPRA), effective January 1, 2023, adds “contractors” to the list of entities that a business may entrust with customer data. So what is a “contractor?” And how are “contractors” different from other entities described by California privacy law, such as “service providers” or “thirdparties?”
As it turns out, the answer is surprising. Contractors are nearly identical to service providers, with just two differences: contractors are not data processors; and contractors must make a contractual certification in CCPA contracts. Moreover, contractors are not even new entities, and were already described in existing California privacy law. ORIGINS OF “CONTRACTORS” IN CCPA To help explain the origins of the new contractor classification, we start with the California Consumer Privacy Act (CCPA). Under the CCPA, now in effect, each disclosure of personal information from a covered business to another entity is regulated, either via consumer opt out preferences or via contractual restrictions. Altogether, there are three potential data flows described in the CCPA: business to third party, business to service provider, and business to a person who is not a third party. We describe each in turn: * BUSINESS TO THIRD PARTY: First, when a business discloses personal information to a third party, this constitutes the “sale” of personal information (unless an exception applies, such as in the context of an intentional disclosure). The CCPA grants consumers the right to opt out of such sales of their personal information to prevent these data flows. As an example, selling a marketing list to a third party or sharing profile information with an adtech partner in most cases would be considered a sale of personal information to a third party. * BUSINESS TO SERVICE PROVIDER: Second, when a business discloses personal information to a service provider, no “sale” occurs and there is no right of consumers to opt out. The requirements for the recipient to be a service provider are that (1) the service provider processes personal information on behalf of the business, and (2) the service provider agrees to retain, use, or disclose the personal information only for business purposes specified in a writtencontract.
Service providers provide technical, professional, and other business support to the business. For example, a service provider might offer various services such as cloud-based servers or software, consulting, or e-commerce fulfillment services. * BUSINESS TO A PERSON WHO IS NOT A THIRD PARTY: Finally, there is a rarely discussed third option in the CCPA. The CCPA states that any recipient of personal information that agrees to certain enhanced contractual terms is _not a third party_. This third category requires that the recipient agree to contractual terms that mirror service provider contractual terms, along with three additional terms: (1) to refrain from selling the personal information, (2) to refrain from retaining, using, or disclosing the information outside the direct business relationship between the recipient and the business, and (3) to certify that the recipient understands the above contractual restrictions. This third option is significant to avoid the “sale” of personal information. If the recipient is not a third party, then a sale can only occur if the recipient is a “business” under CCPA. In many cases, the recipient will not be a business either, typically because the recipient does not determine the purposes and means of processing the personal information. As an example, if an authorized reseller furnishes a manufacturer with a list of new orders for fulfillment, and the manufacturer agrees to use the list only to fulfill orders, the manufacturer is not a third party. Because the manufacturer does not determine the purposes and means of processing the personal information it receives, the manufacturer is not acting as a “business.” No sale occurs. Similarly, if an identity verification service sends personal information to a company to assist that company with confirming the identity of an applicant for service, and the company agrees contractually to limit its use and disclosure of the information for business purposes, the recipient is not a third party or business and no sale occurs from the identity verification service to the business. Here’s a summary of the entities that may receive personal data under the CCPA: Continue Reading CPRA Update: What is a“Contractor?”
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& Maggie Crosswy
on June 2,
2021
Posted in 13 (b)
,
Federal Trade Commission On May 27, the House Energy and Commerce Committee’s Subcommittee on Consumer Protection andCommerce advanced
by voice vote H.R. 2668,
legislation to clarify the Federal Trade Commission’s authority under Section 13(b) of the Federal Trade Act, just five weeks after the Supreme Court gutted that authority in _AMG Capital Management, LLC v. FTC. _The subcommittee vote followed hours of political sparring, with Republicans accusing Democrats of pursuing a rushed, partisan process and Democrats accusing Republicans of ignoring the pleas of the FTC and refusing to engage on the issue. As we’ve described previously, H.R. 2668, the _Consumer Protection and Recovery Act, _authored by Representative Tony Cárdenas (D-CA), would explicitly authorize the FTC to seek permanent injunctions and other equitable relief, including restitution and disgorgement, to redress perceived consumer injury. The subcommittee reported H.R. 2668 largely unchanged, save for a substitute amendment from Representative Cárdenas making minor changes to the bill. At the outset, subcommittee Democrats defeated two Republican motions to postpone consideration of the bill. Democrats subsequently voted down two Republican amendments: one delaying enactment of the bill until the FTC certifies that a 2003 policy statement on disgorgement in competition cases is more broadly applicable; and one prohibiting the Commission from seeking disgorgement unless it has conducted an economic analysis. Republicans also “offered and withdrew” an amendment to reduce the legislation’s proposed statute of limitations from 10 to five years. Beyond 13(b)-specific guardrails, Republicans – including Subcommittee Ranking Member Gus Bilirakis (R-FL) – voiced their intent to address the agency’s 13(b) authority as part of a more holistic FTC policy revamp, including the establishment of a national privacy framework. To that end, another handful of Republican amendments – many dealing with FTC authorities beyond 13(b) – were offered and withdrawn. Continue Reading Energy and Commerce Committee Democrats Advance 13(b) Reform Legislation through SubcommitteeEmailTweet
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LEGAL PRACTICES
By Rod Ghaemmaghami
on June 2,
2021
Posted in Podcast ,
Privacy and Information SecurityIn
April, LAW360
published
the article “Deepfake Best Practices Amid Developing Legal Practices,”
co-authored by partner John Villafrancoand
associate Rod Ghaemmaghami. The article
provides an analysis of deepfake use cases, describes legal tools available to protect against harmful uses of the technology, and suggests some best practices for responsible use of deepfaketechnology.
For this episode of the Ad Law Access podcast, Rod discusses the article and reviews some best practices recommend. Find theepisode here
or wherever
you get your podcasts.
To read the article, please click hereContact:
Rod Ghaemmaghami
rghaemmaghami@kellydrye.comJohn Villafranco
jvillafranco@kelleydrye.com For additional information, please visit: * Advertising and Privacy Law Resource Center * Ad Law Access Blog * Privacy and Information Security Practice Group Page SUBSCRIBE TO THE AD LAW ACCESS BLOGEmailTweet
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2021
Posted in Legislation, Telemarketing
The Florida legislature recently passed CS/SB 1120 updating and significantly expanding the state’s existing telemarketing laws, the Florida Telemarketing Act and the Florida Do Not Call Act.
Many of the new provisions are similar to the TCPA, including, most importantly, adding a private cause of action for any violations of the Florida Do Not Call Act and requiring prior express written consent for automated or prerecorded calls or texts. If the bill becomes law, it will go into effect on July 1, 2021. Under the existing Florida Do Not Call Act, callers are prohibited from making telephonic sales calls using “an automated system for the selection or dialing of telephone numbers” unless (i) the call is in response to a consumer-initiated call, (ii) the numbers are unlisted or have been scrubbed against the state Do Not Call list, or (iii) the calls relate to goods or services previously ordered or purchased. This Act does not include exemptions from the definition of “telephonic sales calls.” The Florida Telemarketing Act determines licensure, call timing, identification, and recordkeeping requirements, among others, and includes a number of exemptions. Continue Reading Florida Takes Page Out of TCPA’s Book with NewLegislation
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TCPA COVERAGE
By Cameron Argetsingeron May
26, 2021
Posted in Class Actions, Litigation
, Telemarketing
Last week, the Seventh Circuit reminded advertisers of the narrowing availability of insurance coverage for Telephone Consumer ProtectionAct (TCPA)
claims. In _Mesa Laboratories v. Federal Insurance Co_., the court rejected a fax marketer’s bid to make its insurer pay for its defense and settlement of an underlying unsolicited fax lawsuit. This decision underscores the insurance industry’s recent trend of limiting TCPA coverage under general policy forms and requiring policyholders to seek out and purchase specific coverage for thosetypes of claims.
At one time, insurance policies did not say whether they provided coverage for claims brought under the TCPA. When the statute was passed in 1991, many policyholders were able to secure coverage for TCPA claims under the “personal and advertising injury” portions of their general liability insurance policies, which typically cover any “oral or written publication that violates a person’s right to privacy.” With the explosion of TCPA lawsuits in recent years, however, insurers have looked to reduce their own exposure by adding exclusions to their policies that expressly bar coverage for TCPA claims. At the same time, many carriers have started offering affirmative coverage for TCPA liability. Policyholders usually must pay extra for this, however, and the coverage often comes with reduced sublimits of liability or other restrictions on coverage. But even when a policy has an express TCPA exclusion, an insurer still might have to defend its insured in a lawsuit that asserts TCPA claims because of a general principle of insurance law recognized by courts around the country: if a lawsuit asserts multiple claims against an insured, and at least _one_ of those claims is covered by the policy, the insurer must defend the entire lawsuit – even if the other claims are expressly excluded from coverage. Thus, an insurer whose policy excludes TCPA claims might have to defend a TCPA lawsuit if the plaintiff also includes a false advertising or defamation claim, both of which are expressly covered. Continue Reading Seventh Circuit Reminds Insurance Policyholders to Shop Carefully for TCPA CoverageEmailTweet
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CARDIFF
By John E. Villafranco, Bez Stern
, Lauren
Margolies &
Kaelyne Yumul Wietelmanon May
25, 2021
Posted in 13 (b)
,
Federal Trade Commission Last Month, in _AMG Capital Management, LLC v. FTC_, the Supreme Court ruled that Section 13(b) of the FTC Act does not allow for monetary remedies. While the importance of this ruling is plain, its implications are only now becoming more clear. Just yesterday, for example, in _FTC v. Cardiff_, a California federal court found the FTC liable to pay all of the Receiver’s fees from the date of the _AMG_ ruling going forward. The Court explained that it would be inequitable for the defendants to pay these fees, now that the Supreme Court has clarified that the 13(b) relief provided only allowed for aninjunction.
This is the first instance we know of where the FTC has been required to pay a Receiver’s fees during the pendency of a 13(b) injunction. As we’ve discussed in earlier posts, the FTC has asked Congress to rewrite the statute in a way that would allow it to unambiguously go straight to Federal Court to obtain money judgments. For now, however, the FTC can no longer rely on Section 13(b) to provide anything other than injunctive relief. As Cardiff illustrates, this will mean different things in the dozens of enforcement actions that arepresently pending.
The following table summarizes relevant post-_AMG _action in these cases. Our team will provide periodic updates. Continue Reading Post-AMG Scorecard: The FTC is Required to Pay Receiver’s fees inCardiff
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13(B)
By John E. Villafranco& Bez Stern
on May 24,
2021
Posted in 13 (b)
,
Federal Trade Commission, FTC
Recently,
the U.S. Chamber of Commerce published a letter to the Committee on Commerce, Science, and Transportation, the Congressional Committee currently working on draft language for a new Section 13(b) of the FTC Act. The Chamber’s letter cautions Congress to ensure that any new statutory language not give the FTC too much authority. In advocating caution, the Chamber makes an important, if subtle, point. The FTC is now arguing that the Supreme Court “took away” 13(b) powers it had before. In reality, though, the Supreme Court in AMG explained that FTC never had the power it arrogated in the first place. The Chamber’s letter noted that the legislative history of the FTC Act requires the Commission to use Section 19’s administrative processes to obtain monetary relief for past violations. There is no reason that Congress should provide the FTC with additional powers, according to the Chamber, when the FTC already has an avenue to seekmonetary relief.
The Chamber’s argument here largely mimics the position of Justice Breyer, who authored the _AMG _decision from a unanimous Court, concluding that the current version of 13(b) does not allow monetary relief. In _AMG_, Justice Breyer explained that “he Commission may obtain monetary relief by first invoking its administrative procedures and then § 19’s redress provisions (which include limitations) . . . By contrast, the Commission’s broad reading would allow it to use §13(b) as a substitute for §5 and §19.” The Chamber’s letter urged Congress not to upset the fine balance the FTC Act originally envisioned. While the Chamber agreed that the FTC should be able to go immediately to Court “to seek appropriate equitable monetary relief for clearly fraudulent cases that are found to be in violation of the law,” it explained that “onetary relief should not be available for every consumer protection violation but should be reserved for the most egregious types of cases.” Continue Reading Acting Chair Rebecca Slaughter and Chamber of Commerce Spar Over a New 13(b)EmailTweet
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& Lauren Myers
on May 23, 2021
Posted in Claim Substantiation,
Environmental Marketing Claims,
Fashion and Retail
With Earth Day
in April, it’s not a surprise that sustainability claims in the clothing industry have been in the limelight this spring. Actions in both the U.S. and overseas are a reminder to fashion retailers of the importance of substantiating sustainability claims. Recently lobbying group PoliticallyInFashion partnered with 40 organizations and individuals to submit a letterto the FTC asking
the agency to conduct a comprehensive review of the Green Guides. Citing “an exponential growth in sustainability claims by businesses,” the group has asked the FTC to provide more guidance on use of the terms “organic” and “sustainable.” The Commission declined to provide specific definitions for either term when the agency last updated the Guides in 2012. PoliticallyInFashion suggests that retailers’ increased focus on sustainability claims, and consumers’ increased interest in retailers’ environmental commitments, warrants additional guidance on the terms. The FTC is scheduled to undertake a review of the Green Guides in 2022. The U.S., however, is not the only country where sustainability claims are in the spotlight. Regulators across the globe are closely scrutinizing clothing retailers’ sustainability claims. In March, the Netherlands Authority for Consumers and Markets (“ACM”) sentletters
to more than 70 clothing companies flagging potentially misleading claims. As one example, ACM advised a retailer that offers consumers the online option to filter items by “sustainability” to explain what makes the clothing sustainable. Director Edwin van Houten explained the importance of action in the clothing industry “because, for consumers, the aspect of sustainability plays a major role in their purchase decisions.” As sustainability continues to influence consumers’ purchasing decisions, consumer protection regulators will seek to ensure that these claims are truthful. Especially because the FTC has yet to define the term “sustainable,” if your marketing team wants to make claims about product sustainability, having accurate and up-to-date substantiation that provides a reasonable basis for the claim is essential. For more information about sustainability claims, or other green marketing issues, see our blog archivesor visit our
Advertising and Privacy Law Resource Center.
*
* * Subscribe here to Kelley Drye’s Ad Law Access blog and herefor
our Ad Law News and Viewsnewsletter.
Visit the Advertising and Privacy Law Resource Centerfor
update information on key legal topics relevant to advertising and marketing, privacy, data security, and consumer product safety andlabeling.
Kelley Drye attorneys and industry experts provide timely insights on legal and regulatory issues that impact your business. Our thought leaders keep you updated through advisories and articles, blogs
, newsletters
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and resource centers. Sign up here
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2021
Posted in Legislation, Privacy and
Information Security SMART (CA) TVS ARE LISTENING: CALIFORNIA ASSEMBLY PASSES VOICE RECOGNITION DEVICE BILL HEADED TO SENATE The California Assembly recently passed AB-1262 updating an existing law to further limit the use of personal information collected through connected TVs and smart speaker devices. Specifically, the bill prohibits: * Operating a voice recognition feature of a connected TV or smart speaker without informing the consumer of the feature during setup orinstallation;
* Using any recording or transcription collected through the feature that qualifies as personal information for any advertising purpose (unless deidentified); * Sharing such recordings or transcriptions, unless deidentified, with a third party without the consumer’s affirmative writtenconsent; and
* Retaining such non-deidentified recordings or transcriptions electronically without the consumer opting in to such retention during installation or otherwise in the device settings. The bill adopts the same broad definition of “personal information” that is in the CCPA and separately defines “affirmative written consent,” detailing the specific language required for such consent. “Smart speaker devices” do not include cell phones, tablets, laptops with mobile data access, pagers, or motor vehicles. California consumers would not have a private cause of action, but the state AG or district attorney would have the authority to seek penalties of up to $2,500 per connected TV or smart device sold or leased that violates the law. After passing the Assembly, the bill will now need to pass in the Senate and be signed by the Governor to become law. The bill was recently referred to the Senate’s Committee on Judiciary for review. This bill signals the state’s continued focus on consumer privacy, as legislators continue to consider the privacy implications of smart devices and other technology, and the variety of ways in which companies use data for advertising purposes. We will continue to monitor the legislation and provide any updates.*
* * Subscribe here to Kelley Drye’s Ad Law Access blog and herefor
our Ad Law News and Viewsnewsletter.
Visit the Advertising and Privacy Law Resource Centerfor
update information on key legal topics relevant to advertising and marketing, privacy, data security, and consumer product safety andlabeling.
Kelley Drye attorneys and industry experts provide timely insights on legal and regulatory issues that impact your business. Our thought leaders keep you updated through advisories and articles, blogs
, newsletters
, podcasts
and resource centers. Sign up here
to
receive our email communications tailored to your interests. Follow us on LinkedInand Twitter
for the latest updates.EmailTweet
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* Food Industry Regulatory and Litigation Highlights – April andMay 2021
* CPRA Update: What is a “Contractor?” * Energy and Commerce Committee Democrats Advance 13(b) Reform Legislation through Subcommittee * Ad Law Access Podcast – Deepfake Best Practices Amid DevelopingLegal Practices
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