When a disclosure is necessary to prevent an ad from being misleading, the disclosure must be presented in a “clear and conspicuous” manner. Exactly what that means depends a lot on the context, but one question we get regularly is whether disclosures can be presented through a hyperlink. In a recent decision involving ads for HelloFresh, NAD looked at FTC guidance and considered just how much of a disclosure can appear on a separate page.

https://www.adlawaccess.com/2023/05/articles/nad-addresses-hyperlinked-disclosures/

Gonzalo Mon

(202) 342-8576

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

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As we have previously reported, State Attorneys General have joined other enforcers in addressing the latest AI technology. At the recent 2023 NAAG Consumer Protection Spring Conference, two separate panels discussed how the AGs are focusing on AI.

https://www.adlawaccess.com/2023/05/articles/ags-and-ai-transparency-is-key/

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

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The FTC has made news recently with its recent enforcement activity regarding companies’ alleged disclosures of consumer health data, as detailed in our recent post FTC to Advertisers: We’re tracking Your Use of Health information, and as evidenced by the FTC’s tentative agenda for its next open meeting later this month on potential rulemaking regarding amending the Health Data Breach Notification Rule (a point which is curious given its prior policy statement already attempting to expand its scope, which we discussed here).

https://www.adlawaccess.com/2023/05/articles/the-ftc-is-not-the-only-one-tracking-your-use-of-health-information/

Alysa Hutnik

(202) 342-8603

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

Lauri Mazzuchetti

(973) 503-5910

https://www.kelleydrye.com/Our-People/Lauri-A-Mazzuchetti

Whitney Smith

(973) 503-5923

https://www.kelleydrye.com/Our-People/Whitney-M-Smith

Emily Clark

(973) 503-5934

https://www.kelleydrye.com/Our-People/Emily-E-Clark

Sabrina Morelli

(212) 808-5962

https://www.kelleydrye.com/Our-People/Sabrina-Eve-Morelli

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This week, the FTC held its Talking Trash at the FTC workshop, a four-hour event intended to examine “recyclable” claims in ads. We’ve sifted through some of the trash and pulled out a few things worth noting.

https://www.adlawaccess.com/2023/05/articles/talking-trash-at-the-ftc-event-recap/

Gonzalo Mon

(202) 342-8576

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

Katie Rogers

(202) 342-8455

www.kelleydrye.com/Our-People/Katherine-Rogers

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Google updated its privacy terms earlier this month, shifting away from offering many of its advertising services on a “service provider” basis. With the change, Google states that its Customer Match, Audience Partner API, and certain audience-building services no longer meet the CCPA’s strict new requirements to be offered on a “service provider” basis. The implication of this change is that companies leveraging these services are “selling” or “sharing” personal information and will need to offer consumers an opportunity to opt out.

https://www.adlawaccess.com/2023/05/articles/with-july-1st-in-view-google-updates-ccpa-contract-terms/

Aaron Burstein

(202) 342-8453

https://www.kelleydrye.com/Our-People/Aaron-J-Burstein

Alexander Schneider

(202) 342-8634

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

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Abraham Lizama purchased a turquoise sweater from H&M’s “Conscious Choice” collection, a line of clothing “created with a little extra consideration for the planet” which generally include “at least 50% of more sustainable materials.” Although we imagine that Lizama looked quite handsome in his sweater, he soon regretted his purchase and filed a class action against the retailer, accusing it of greenwashing because the sweater did not meet his view about what’s good for the environment.

https://www.adlawaccess.com/2023/05/articles/hm-wins-dismissal-in-greenwashing-suit/

Gonzalo Mon

(202) 342-8576

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

Katie Rogers

(202) 342-8455

https://www.kelleydrye.com/Our-People/Katherine-Rogers

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State AG executives and consumer protection staff gathered for the 2023 NAAG Consumer Protection Spring Conference. After a warm welcome to Florida by John Guard, Chief Deputy Attorney General in Florida, first on the agenda was the much-anticipated discussion with Attorney General John Formella of New Hampshire and AG executives Lacey Mase, Chief Deputy in Tennessee, Jennifer Levy, First Assistant Attorney General in New York, and Nathan Blake, Colorado Deputy Attorney General for Consumer Protection. The panel was moderated by prominent Consumer Protection figures Jeff Hill, Executive Counsel in Tennessee and Susan Ellis, Division Chief of the Consumer Protection Division in Illinois.

https://www.adlawaccess.com/2023/05/articles/now-and-in-10-ag-consumer-priorities-and-challenges-today-and-tomorrow/

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

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In the past couple years, the Federal Trade Commission has gone 0 for 2 before the Supreme Court. In AMG, the Court found that Section 13(b) of the FTC Act does not provide the Commission with the authority to obtain equitable monetary relief. Last month, in Axon, the Court held that parties need not wait until the conclusion of administrative proceedings before challenging the constitutionality of the FTC’s structure, but may bring their complaints to district courts. Given this recent track record, the Commission probably wasn’t thrilled to find itself before the Fifth Circuit, defending against constitutional challenges raised by Traffic Jam Events, and its owner, David Jeansonne.

https://www.adlawaccess.com/2023/05/articles/deja-vu-the-5th-circuit-hears-yet-another-challenge-to-constitutionality-of-an-administrative-agency/

Caroline Schmitz

(202) 342-8459

https://www.kelleydrye.com/Our-People/Caroline-T-Schmitz

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During the Federal Trade Commission’s (FTC) Open Meeting on May 18, the Commissioners unanimously voted to adopt the Policy Statement on Biometric Information and Section 5 of the FTC Act. The Policy Statement broadly defines biometric data, catalogues the risks the Commission believes are posed by technology that utilizes biometric information, and imposes substantive requirements on companies employing these technologies.

https://www.adlawaccess.com/2023/05/articles/ftc-adopts-policy-statement-on-biometric-data/

Kate White

(202) 342-8855

https://www.kelleydrye.com/Our-People/Katherine-White

Ali Albazzaz

(312) 857-2619

https://www.kelleydrye.com/Our-People/Ali-Albazzaz

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In January 2022, the Texas Attorney General filed a lawsuit against Google alleging that the company engaged iHeartMedia DJs to provide endorsements for its Pixel 4 phone, even though they had never used it. In November 2022, the FTC and several state attorneys general announced settlements with Google and iHeartMedia over the same conduct. Although Texas settled with iHeartMedia, it continued to separately pursue its case against Google. Last week, the parties agreed to a settlement.

https://www.adlawaccess.com/2023/05/articles/google-to-pay-8-m-to-settle-with-texas-over-dj-endorsements/

Gonzalo Mon

(202) 342-8576

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

Paul Singer

(202) 342-8672

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

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