Alysa Hutnik, Laura Riposo VanDruff, Jennifer Rodden Wainwright

Most businesses that send texts to their target audiences are focused on compliance with the federal Telephone Consumer Protection Act (TCPA) – and understandably so, given the explosion in class action litigation stemming from the TCPA’s private right of action. However, outreach to consumers by phone, including texting, can also come under scrutiny under a patchwork of state laws, many of which have unique nuances that create compliance challenges.

Katie Rogers, Gonzalo Mon

Last week, consumers in four states filed a proposed class action against Amazon, accusing the company of greenwashing by misleading consumers about the sustainability of the company’s Amazon Basics line of paper products. The 123-page complaint covers a lot of ground, but here are some of the key allegations

Gonzalo E. Mon

DREO advertises that it is the ​“No. 1 Fan and Heater Brand” in the United States. Lasko, a competitor, thinks that it is, in fact, the ​“number 1” brand in both of those categories. Because there can’t be two ​“number 1” brands, Lasko filed a challenge before the NAD to dispute its competitor’s claims.

Donnelly McDowell, Ioana Gorecki

Yesterday, we covered President Trump’s firing of Democratic FTC Commissioners Alvaro Bedoya and Rebecca Slaughter and explored whether a two-member Commission constitutes a quorum for the agency to take formal action.

Today, we take a look at the FTC’s first 50 days under Chair Andrew Ferguson, reflecting on key developments and early insights relating to the agency’s consumer protection agenda. So far, the FTC has issued several business blog posts, formed two new task forces, initiated information-gathering efforts, and announced three new enforcement actions. While the new Commission leadership continues to shape its priorities, early indications suggest a strong focus on combating consumer fraud and scrutinizing content censorship practices by large technology companies.

President Trump fired the two Democratic members of the Federal Trade Commission, Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter. President Trump’s action leaves Chair Andrew Ferguson (R) and Commissioner Melissa Holyoak (R) as the only two members of the Commission, which has many wondering: can the FTC take formal action by a 2-0 vote cast by members of the same party? Can Trump refuse to appoint new Democratic members? What happens next for Commissioners Bedoya and Slaughter?

See the blog post from John E. Villafranco and Andrea deLorimier: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/can-two-ftc-commissioners-of-the-same-party-constitute-a-quorum

Podcast hosted by Simone Roach

Gonzalo Mon

Simpler Hair Color (or ​“SHC”) advertises that its products are ​“Rated #1 Men’s Hair Color” and ​“Rated #1 Men’s Hair & Beard Color” based on ​“Trustpilot​.com verified reviews.” Combe, a competitor, challenged the #1 claims before the NAD, arguing that the claims are unsubstantiated because Trustpilot doesn’t have a ​“Men’s Hair Color” category and that SHC is not listed as #1 in any actual Trustpilot category.

As news hit that President Trump fired the two remaining Democratic FTC Commissioners Alvaro Bedoya and Rebecca Slaughter, many questions abound. Would Commissioners Bedoya and Slaughter contest the dismissals? (The answer there appears to be an emphatic yes – with both issuing statements last night to that effect.) Another question: what will this mean for day-to-day operations at the Commission, including the ability for the FTC to continue to bring actions with only two commissioners of the same party, an issue my colleagues cover in a separate post here.

Perhaps the biggest question – with implications far beyond our day-to-day advertising and privacy worlds – is whether the Supreme Court will overturn its 1935 decision in Humphrey’s Executor, a decision that forms the longstanding constitutional basis for independent agencies like the FTC, Consumer Product Safety Commission (CPSC), Securities and Exchange Commission (SEC), Federal Communications Commission (FCC), Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB), amongst others. As a refresher, in Humphrey’s Executor, the Supreme Court upheld the insulation of FTC Commissioners from removal by the President at will – finding that the Constitution permits Congress to create expert independent agencies led by a group of principal offers removable only for cause.

What’s going on with Michigan’s consumer protection statute? How does the Michigan Attorney General’s Office operate, and what are its enforcement priorities? In this episode of the Ad Law Access Podcast, your host Simone Roach delivers insights from Paul L. Singer, Abigail Stempson, Beth Bolen Chun, and Andrea deLorimier, based on their recent blog post recapping their recent webinar with Michigan Attorney General Dana Nessel’s discussion on these key topics: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/state-ags-and-consumer-protection-what-we-learned-from-michigan

With potential changes to Michigan’s consumer protection laws and new enforcement priorities on the horizon, this is an important listen for businesses navigating regulatory risks in the state.

New York Attorney General Letitia James reached a settlement with app developer Saturn Technologies following an investigation into the company’s privacy practices. Saturn’s calendar app, marketed to high school students, promised an exclusive community but allegedly failed to deliver on its security claims. The settlement includes a $200,000 payment, stricter privacy safeguards, and marketing compliance requirements.

In this episode of the Ad Law Access Podcast, your host Simone Roach delivers insights from Alysa Z. Hutnik, Paul L. Singer, Beth Bolen Chun, and Abigail Stempson, who break down the key takeaways from the AG’s action. With teen privacy and social media under increasing scrutiny, this case underscores the importance of transparency in data collection, user verification, and marketing practices.

Blog post here: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/new-york-ag-settles-with-school-calendar-app-saturn

Aaron J. Burstein and Laura Riposo VanDruff: As its first policy initiative under Chair Andrew Ferguson, the FTC announced a Request for Information (RFI) ​“to better understand how technology platforms deny or degrade users’ access to services based on the content of their speech or affiliations, and how this conduct may have violated the law.” The premise of the RFI is that ​“technology platforms” – which include a wide variety of ​“internet services” – ​“deny or degrade (such as by ​“demonetizing” and ​“shadow banning”) users’ access to services based on the content of the users’ speech or their affiliations, including activities that take place outside the platform,” which the RFI refers to as ​“adverse actions.” The RFI solicits comments from consumers who have experienced limits on the ​“ability to share . . . ideas or affiliations freely and openly,” including from ​“current and former employees of technology platforms” who may have knowledge of platforms’ motivations behind their decisions and policies.