Privacy Perspectives: Data Broker Laws Are Expanding. Is Your Business in Scope?

Data broker laws are expanding quickly, and their reach may extend beyond companies that traditionally think of themselves as data brokers.

In this episode of Privacy Perspectives, Alex Schneider, Aaron Burstein, and Céline Guillou discuss the changing state and federal regulatory landscape, including New Jersey’s newly enacted requirements, California’s Delete Act, evolving definitions of data brokers, and the growing importance of understanding specific data flows.

They also examine how these laws may affect retailers, advertisers, technology providers, and other businesses that collect, enrich, license, sell, or share consumer data.

Aaron J. Burstein

Partner

Former attorney in the FTC’s Division of Privacy and Identity Protection

(202) 342-8453

www.kelleydrye.com/people/aaron-j-burstein

Celine Guillou

Special Counsel, Advertising and Privacy Group

Former Enforcement Attorney, California Privacy Protection Agency

(213) 547-4946

www.kelleydrye.com/people/celine-m-guillou

Alex Schneider

Special Counsel, Advertising and Privacy Group

(202) 342-8634

www.kelleydrye.com/people/alexander-i-schneider

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Can a claim be literally true and still mislead consumers? In this episode, we unpack a New York federal court’s decision allowing a class action against Abbott Laboratories over PediaSure Grow & Gain’s “Clinically Proven to Help Kids Grow” claims to move forward. The court found that a jury could reasonably conclude consumers interpreted the advertising to mean the product helps typical children grow taller—even though the supporting studies involved children at risk of malnutrition and the packaging included a disclaimer. The case underscores a critical lesson for advertisers: courts evaluate the overall consumer takeaway, including images, context, and disclosures, and even technically accurate claims can create legal risk if they communicate a message the evidence doesn’t support.

Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

In this episode, we unpack the lawsuit against prediction market platform Polymarket, which accuses the company of orchestrating undisclosed influencer campaigns, promoting simulated betting videos that appeared to show real winnings, and using viral “clipping” tactics designed to make paid content look organic. The case serves as a timely reminder that, even as FTC enforcement priorities evolve, consumer groups and private plaintiffs are increasingly stepping in to police influencer marketing practices. For brands working with creators, the message is clear: transparent disclosures, authentic content, and compliance with endorsement rules remain essential to avoiding legal and reputational risk.

Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

What seems like a simple request for records can quickly become a costly compliance failure. In this episode, we unpack the FTC’s settlement with Amazon over alleged violations of the Fair Credit Reporting Act’s identity theft record requirements, highlighting how routine customer service practices, identity verification protocols, and privacy concerns can conflict with the FCRA’s strict obligations. The case serves as a reminder that businesses handling consumer data must do more than adopt compliance policies—they must ensure frontline employees can execute them correctly and within the law’s precise timelines. For companies managing fraud, identity theft, or consumer records, the settlement underscores that operational details can carry significant regulatory consequences.

Hosted by Simone Roach. Based on a blog post by Laura Riposo VanDruff and Donnelly L. McDowell.

What should food delivery apps tell you before you click “place order”? In this episode, we unpack a bipartisan coalition of 16 state attorneys general urging the FTC to adopt sweeping new rules governing food delivery platform fees, with a focus on drip pricing, service fees, menu markups, tipping transparency, and personalized pricing. The AGs argue that consumers deserve clearer disclosures about how fees are calculated, whether menu prices differ from in-store prices, and when personal data is being used to tailor prices or discounts. As state and federal regulators increasingly align around pricing transparency, the proposal signals that food delivery platforms—and potentially other industries using similar pricing models—should prepare for heightened scrutiny of fees, disclosures, and data-driven pricing practices.

Hosted by Simone Roach. Based on a blog post by Paul L. Singer, Abigail Stempson, Beth Bolen Chun, and Andrea deLorimier.

In this episode of our Summer Edition series, we examine several of the biggest developments shaping advertising, privacy, and consumer protection law. We discuss state attorneys general's push for greater transparency around food delivery fees and personalized pricing, a federal court's analysis of growth claims in advertising, the FTC's latest action against deceptive subscription practices, and two new lawsuits highlighting the continued legal risks surrounding influencer marketing and endorsement disclosures. We also explore lessons from the FTC's recent settlement with Amazon over its handling of identity theft records under the Fair Credit Reporting Act and highlight on-demand Kelley Drye webinars covering pricing, DOJ enforcement, and state attorney general priorities.

Hosted by Simone Roach. This episode features blog posts by Paul Singer, Abigail Stempson, Beth Chun, Andrea deLorimier, Gonzalo Mon, Laura Riposo VanDruff, and Donnelly McDowell.

You can find these blog posts and much more at AdLawAccess.com.

For webinar recordings, upcoming events, and additional thought leadership, visit KelleyDrye.com.

This week marks the launch of our Summer Edition of the Ad Law Access Podcast. Throughout the summer, we'll bring you roundups of the latest posts from Ad Law Access, along with updates on webinars and other Kelley Drye resources to help you stay current on the rapidly evolving world of advertising, privacy, consumer protection, and regulatory enforcement.

In this episode, we discuss Kelley Drye's comments urging the FTC to rethink the duration of its consent orders, explore the growing regulatory focus on pricing practices through our "Pricing 101" series, and examine FTC enforcement against a company that claimed to use AI to listen to consumer conversations for ad targeting. We also cover New York's new synthetic performer disclosure law, NAD's inquiry into influencer disclosures, and highlight upcoming webinars on surveillance pricing and evolving DOJ corporate enforcement priorities.

Hosted by Simone Roach. This episode features blog posts by John Villafranco, Paul Singer, Alysa Hutnik, and Gonzalo Mon.

How should brands disclose AI-generated people in advertising—and what happens when the rules aren’t clear? In this episode, we unpack New York’s new “synthetic performer” law, which requires advertisers to conspicuously disclose when ads feature AI-generated or algorithmically created human-like performers. We explore the many unanswered questions surrounding the law, including whether it applies to background characters, partial performers, and other common creative elements, as well as the challenges advertisers face in determining what qualifies as a sufficiently clear disclosure. As states continue to push AI transparency requirements into the advertising space, companies using AI-generated content should be paying close attention to how these new rules could reshape marketing compliance and creative strategy.

Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

When is a “100%” claim not as clear as it seems? In this episode, we unpack a recent NAD decision examining how consumers interpret absolute claims and why advertisers should be cautious when using “100%” messaging in marketing. The case highlights NAD’s continued focus on consumer takeaway, substantiation, and context, emphasizing that even simple, seemingly straightforward claims can convey broader messages than advertisers intend. As regulators, self-regulatory bodies, and plaintiffs increasingly scrutinize absolute and unqualified representations, the decision offers valuable guidance for companies looking to balance compelling marketing with defensible advertising claims.

Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

What can a $35 million settlement teach companies about subscription billing, auto-renewals, and cancellation practices? In this episode, we unpack the FTC’s case against Shutterstock, which resulted in one of the agency’s largest recent settlements over alleged negative option marketing violations. The complaint alleges that Shutterstock failed to clearly disclose automatic renewals and cancellation fees, did not obtain consumers’ express informed consent for recurring charges, and made it unnecessarily difficult to cancel subscriptions. As regulators continue to focus on auto-renewal programs, recurring billing, and “click-to-cancel” principles, the case serves as a powerful reminder that businesses must ensure material terms are clear, consent is meaningful, and cancellation is as straightforward as enrollment.

Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.