As most people know – either from professional or personal experience – the CAN SPAM Act requires companies who send “commercial” email messages to give consumers an opportunity to opt-out of receiving those messages in the future. The opt-out requirement does not apply to “transactional” messages, which generally facilitate an already agreed-upon transaction or update a customer about an ongoing transaction.

https://www.adlawaccess.com/2023/08/articles/ftc-assesses-primary-purpose-of-emails-in-can-spam-enforcement/

Gonzalo Mon

(202) 342-8576

www.kelleydrye.com/Our-People/Gonzalo-E-Mon

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NARB recently announced a decision in a case involving various claims that Shark Ninja made in an infomercial for its Shark Stratos Powered Lift-Away vacuum cleaner, including claims about how well the vacuum picks up hair and how well it reduces odors. The decision covers a lot of ground – Dyson challenged six express claims and nine implied claims – but we’re just going to focus on a few issues that come up regularly in our conversations with clients about claim substantiation.

https://www.adlawaccess.com/2023/08/articles/narb-decision-holds-lessons-for-claim-substantiation/

Gonzalo Mon

(202) 342-8576

www.kelleydrye.com/Our-People/Gonzalo-E-Mon

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We regularly cover challenges to “Made in USA” claims, particularly by the FTC, but most of the time those cases don’t rely on consumer perception evidence about what the claim means. So the recent class certification in the Central District of California in a case against R.C. Bigelow, Inc. caught our attention. Plaintiffs allege that Bigelow misrepresents that its tea is “Manufactured in the USA” because the tea was processed abroad. They relied on a perception survey to spill the tea on consumer takeaway for the claim.

https://www.adlawaccess.com/2023/08/articles/spilling-the-tea-on-made-in-usa-claims/

Christie Grymes Thompson

(202) 342-8633

https://www.kelleydrye.com/Our-People/Christie-Grymes-Thompson

Cristina Ferretti

(212) 808-5057

https://www.kelleydrye.com/Our-People/Cristina-Ferretti

Ted Herod

(212) 808-5965

https://www.kelleydrye.com/Our-People/Edwin-A-Herod

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Last week, BINT Operations LLC aka “Blessings in No Time” (“BINT”) and its owners resolved two separate, but coordinated, lawsuits stemming from states’ and the FTC’s investigations alleging perpetration of an illegal pyramid scheme.

https://www.adlawaccess.com/2023/08/articles/texas-ag-arkansas-ag-and-ftc-dont-bless-pyramid-scheme-blessings-in-no-time/

Paul Singer

(202) 342-8672

www.kelleydrye.com/Our-People/Paul-L-Singer

Abigail Stempson

(202) 342-8678

www.kelleydrye.com/Our-People/Abigail-Stempson

Rod Ghaemmaghami

(213) 547-4912

https://www.kelleydrye.com/Our-People/Rod-Ghaemmaghami

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Earlier this year, Coca-Cola reformulated its Powerade beverage to include more electrolytes. In some ads, it boasted that the beverage now contained “50% more electrolytes vs. Gatorade Thirst Quencher.” One social media post featured a headline “Powerade vs. Gatorade Thirst Quencher” above a side-by-side comparison of the electrolyte and vitamin content of the two beverages. The caption read: “Don’t Underestimate our Electrolytes” followed by a flexed arm emoji. 💪

https://www.adlawaccess.com/2023/08/articles/nad-reads-into-emojis/

Gonzalo Mon

(202) 342-8576

www.kelleydrye.com/Our-People/Gonzalo-E-Mon

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We continue our State AG webinar series traveling farther west past the Great Plains to the Rocky Mountains in Colorado. Last week, we spoke with Colorado Attorney General Phil Weiser and Deputy Attorney General for Consumer Protection, Nathan Blake, and covered a wide range of topics from the office’s structure, to the Colorado Privacy Act, to artificial intelligence (AI), and teen mental health. We recap highlights of what we learned below.

https://www.adlawaccess.com/2023/08/articles/state-ags-and-consumer-protection-what-we-learned-from-colorado/

Paul Singer

(202) 342-8672

www.kelleydrye.com/Our-People/Paul-L-Singer

Abigail Stempson

(202) 342-8678

www.kelleydrye.com/Our-People/Abigail-Stempson

Beth Chun

(202) 342-8671

www.kelleydrye.com/Our-People/Beth-Bolen-Chun

Kaelyne Wietelman

(202) 342-8478

www.kelleydrye.com/Our-People/Kael…Yumul-Wietelman

Darby Hobbs

(202) 342-8412

www.kelleydrye.com/Our-People/Darby-B-Hobbs

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Last year, the Senate Commerce Committee marked up two bipartisan bills to protect kids’ privacy and safety – the Kids Online Safety Act (KOSA), and the Children and Teens’ Online Privacy Protection Act (COPPA 2.0) – amidst high hopes that the bills would get a vote on the Senate floor. With comprehensive privacy legislation still tripped up over preemption and private rights of action, policymakers thought that legislation to protect kids would have the best chance of passage. The bills never made it to the floor, however, and they died in the 117th Congress.

https://www.adlawaccess.com/2023/08/articles/kids-privacy-and-safety-redux-amended-kosa-and-coppa-2-0-advance-by-voice-vote/

Jessica Rich

(202) 342-8580

www.kelleydrye.com/Our-People/Jessica-L-Rich

Darby Hobbs

(202) 342-8412

https://www.kelleydrye.com/Our-People/Darby-B-Hobbs

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Most NAD cases are brought by competitors, but NAD can also initiate a proceeding pursuant to its “responsibility for monitoring and reviewing national advertising for truthfulness and accuracy.” Looking at the cases NAD initiates on its own can help provide insights into its priorities and strategies.

https://www.adlawaccess.com/2023/07/articles/nad-reads-into-wsjs-cancel-anytime-claims/

Gonzalo Mon

(202) 342-8576

www.kelleydrye.com/Our-People/Gonzalo-E-Mon

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On July 21, 2023, the White House announced that it had secured commitments from the leading artificial intelligence companies to manage the risks posed by AI. As stressed in the press release and in news articles since, these commitments are just the beginning of a longer process to ensure the “safe, secure, and transparent” development of AI.

https://www.adlawaccess.com/2023/07/articles/those-ai-commitments-from-the-tech-companies-arent-just-voluntary-theyre-enforceable-by-the-ftc/

Jessica Rich

(202) 342-8580

www.kelleydrye.com/Our-People/Jessica-L-Rich

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The California Privacy Protection Agency (CPPA) and California Office of Attorney General (OAG) are publicly pressing ahead with enforcement now that they have the authority to enforce the California Consumer Privacy Act (CCPA) as of July 1st. While the agencies did not announce headline grabbing enforcement decisions at the start of the month, there were some notable developments.

https://www.adlawaccess.com/2023/07/articles/ccpa-update-agencies-push-ahead-with-enforcement-as-superior-court-delays-new-regulations/

Alysa Hutnik

(202) 342-8603

https://www.kelleydrye.com/Our-People/Alysa-Z-Hutnik

Alexander Schneider

(202) 342-8634

https://www.kelleydrye.com/Our-People/Alexander-I-Schneider

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