Ad Law News And Views – October 29, 2022 – Advertising, Marketing and Branding
IN THE NEWS AND LATEST UPDATES
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Break up with celebrities
We all know someone who can be unpredictable and erratic. It can be fun to hang out with this person, because you’ll probably 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 probably goes for relationships between brands and certain celebrities.
Blurred Lines: Overview of the FTC Workshop “Protecting Children from Stealth Advertising in Digital Media”
As we recently blogged here, the FTC’s review of the COPPA rule has been pending for more than three years, prompting a group of senators in early October to ask the agency to “Please put update the COPPA rule now”. The FTC has yet to respond to this request (at least not publicly) or take official action to resume its review of COPPA. However, the agency is focusing on children’s privacy and safety in other ways, including hosting a virtual event on October 19 on “Protecting Children from Stealth Advertising in Digital Media.”
FTC explores new rule to combat fake reviews
The FTC has made it a priority to combat false and misleading reviews. For example, this year alone, the FTC announced a settlement with a retailer for its failure to post negative reviews, announced a settlement with another retailer for its failure to disclose that reviews were instigated, partnered with six states to take legal action against a company that allegedly purchased fake reviews, and proposed changes to endorsement guides that would provide more detailed guidance on such practices.
Discrimination and Injustice Update – The FTC Case Against Passport Automotive Group
In late September, we blogged about a lawsuit the Chamber of Commerce and other business groups have filed against the CFPB, challenging the CFPB’s update of its supervision and examinations manual. As updated, the handbook now states that discrimination is an “unfair” practice under the Dodd-Frank Act and that the agency plans to review it “in all areas of consumer credit,” ” including in situations where fair lending laws may not apply”. We noted in our blog post that the FTC and state attorneys general are also sending signals that they plan to challenge discrimination using their injustice authority.
Beverage Makers Received Recall Over Kombucha False Advertising Case
Anyone who has strolled through the liquor aisle of supermarkets in recent months may be quite impressed by the proliferation of alcoholic and not-so-alcoholic beverages in pretty packaging, with small cans and pastel colors making it hard to immediately discern whether they contain alcohol and, if so, how much. According to data from Nielsen, in 2021, on-the-go sales of alcohol-free and low-alcohol beverages were $3.1 billion, up from $291 million the previous year, with an expected growth of 30% By 2024. market, beverage makers will have to navigate jurisdictional and labeling regulations, which can be tricky, as illustrated by a recently filed misleading advertising case involving allegedly alcoholic kombucha.
‘An arrow has found its target’: Federal Court of Appeals rules CFPB funding method unconstitutional, invalidating payday loan rule
In a decision with potentially significant implications for the CFPB, a three-judge panel of the United States Circuit Court of Appeals for the Fifth Circuit ruled yesterday that the Bureau’s funding structure is unconstitutional. The case involved a longstanding challenge to the Bureau’s 2017 payday loan rule and marks another significant hurdle for the Bureau two years after the Supreme Court’s decision in Seila Law that its leadership structure violated the principles of separation of powers.
50 cents, a euphemistic eggplant and the right to publicity
Celebrities generally don’t like companies to use their images or names without permission. For example, Jennifer Love Hewitt didn’t like a company using her image to promote a vitamin spray, and Michael Jordan seemed quite upset when a grocery store used his name to promote a steak. Now, 50 Cent looks downright angry that his photo was allegedly used by a plastic surgeon to promote “male sexual enhancement procedures.”
FTC Policy Statements, Reports and Warning Letters: Why Are There So Many?
The FTC has a long history of using policy statements, public workshops, reports, and warning letters to influence the market and communicate its thinking on key issues and aspects of its mission. Examples of my tenure at the FTC include workshops and reports on big data, data brokers, mobile payments, and the Internet of Things; policy statements on the misleading formatting of homeopathic medicine advertisements and claims; and warning letters to a series of companies making health claims (see here, here and here, for example).
California bans ‘Forever Chemicals’ PFAS in clothing, textiles and cosmetics
California joined the growing list of states banning products containing per- and polyfluoroalkyl substances (“PFAS”) when, on September 29, Governor Newsom signed into law a law banning so-called “eternal chemicals” in clothing, textiles and cosmetics. The ban takes effect from 2025 and applies to the sale, manufacture and distribution of new cosmetics and textiles (defined as including clothing, accessories, handbags, backpacks, draperies, shower curtains, furniture, upholstery, bedding, towels, napkins, and tablecloths) that contain “intentionally added” PFAS.
Washington AG Reports Enforcement of Automatic Renewals
Earlier this week, we reported that a plaintiff had filed a proposed class action lawsuit against the NFL over its automatic renewal practices. The complaint alleges that the NFL used “dark patterns” to enroll consumers in its NFL+ membership without consent and then found it difficult for them to cancel. While we don’t know exactly what happened in this case, these are themes that come up frequently in auto-renewal cases. These themes were also echoed in an ad from Washington AG Bob Ferguson this week.
New study identifies over 57,000 sites ‘presumed contaminated’ with PFAS
A new paper from the PFAS Project Lab at Northeastern University and researchers from the National Institute of Environmental Health Sciences (NIEHS) come to the sobering conclusion that more than 57,000 sites in the United States show “contamination presumed” by per- and polyfluoroalkyl substances (“PFAS”). Even more concerning is the authors’ assertion that this number is almost certainly a dramatic underestimate of the number of PFAS-contaminated sites, given the limited availability of data and the conservative mapping methodology used.
NFL hit with automatic renewal lawsuit (and hyperbole)
Last week, a plaintiff filed a proposed class action lawsuit against the NFL over its auto-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 knowledge or consent, and that the NFL then made it difficult to cancel them. It’s a little hard to tell from the complaint exactly what happened, but the gist of the argument is familiar.
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