Earlier this week, FDA issued draft guidance for staff updating the agency’s existing enforcement policy regarding major food allergen labeling and cross-contact prevention. The updated guidance reflects the addition of sesame as a major allergen, discusses how allergens must be disclosed when used as an ingredient in packaged food, and details the preventive controls provisions in 21 CFR § 117 applicable to preventing allergen cross contact. The updated guidance also details the circumstances in which failure to properly declare allergens or prevent cross-contact render a food misbranded or adulterated. Stakeholders have until July 17th to submit comments.

https://www.adlawaccess.com/2023/05/articles/fda-updates-draft-cpg-regarding-major-food-allergen-labeling-and-cross-contact-what-manufacturers-and-food-retailers-should-do-next/

Kristi Wolff

(202) 342-8805

www.kelleydrye.com/Our-People/Kristi-L-Wolff

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Our State AG webinar series continues with Connecticut Attorney General William Tong and Chief of the Privacy Consumer Protection Section Michele Lucan. During our webinar, the Connecticut AG’s office described their structure and the tools available to them to enforce the state’s consumer protection laws. In particular, as the fifth state to pass comprehensive privacy legislation, AG Tong highlighted the AG office’s privacy priorities and agenda which we will focus on here in Part I. We will explore the more general consumer protection topics in Part II. In case you missed it, here is a recording of the webinar.

https://www.adlawaccess.com/2023/05/articles/state-ags-and-consumer-protection-what-we-learned-from-connecticut-part-i/

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

https://www.kelleydrye.com/Our-People/Kaelyne-Yumul-Wietelman

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Can claims that are factually true still be deceptive? This is the question before a Connecticut federal court. Last summer, Tonya Akes, a consumer, sued Beiersdorf, Inc., maker of Coppertone sunscreen, alleging that Beiersdorf engaged in deception because it sold the SPF 50 Coppertone Sport Mineral Face sunscreen, which she alleges she believed was “specifically designed” for use on the face based on the front-of-pack claims, at twice the price as the regular Coppertone Sport Mineral sunscreen, despite the formulas being identical.

https://www.adlawaccess.com/2023/05/articles/two-faced-coppertone-case-tests-whether-factually-true-claims-are-deceptive/

Kristi Wolff

(202) 342-8805

https://www.kelleydrye.com/Our-People/Kristi-L-Wolff

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My Patriot Supply (or “MPS”) and 4Patriots both make long-term survival food kits and related products. If a natural disaster strikes, if AI-powered bots wreak havoc on humanity, or if you just want to binge-watch your favorite shows and tune out the rest of the world, these companies have your back. But they don’t have each other’s backs.

https://www.adlawaccess.com/2023/05/articles/advertising-lessons-from-the-survival-industry/

Gonzalo Mon

(202) 342-8576

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

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On June 27, 2023, “online marketplaces” (i.e., online selling platforms like Amazon and EBay) will have some brand new obligations. So will many of the third party sellers that operate on these platforms.

https://www.adlawaccess.com/2023/05/articles/new-law-governing-online-platforms-and-sellers-takes-effect-in-june-are-you-ready/

Jessica Rich

(202) 342-8580

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

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Over the past few weeks, we’ve posted about a few cases involving pricing claims, including a post discussing a lawsuit over a grocer’s BOGO offers, a post discussing a lawsuit over major retailer’s frequent sales, and a post discussing an NAD challenge over claims that a smaller retailer made about its sales. If those didn’t catch your attention, today’s post about a $197 million settlement should.

https://www.adlawaccess.com/2023/05/articles/retailer-to-pay-197-million-to-settle-pricing-claims/

Gonzalo Mon

(202) 342-8576

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

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Mike Lindell – the “My Pillow Guy” – makes pillows that are soft to touch and claims that are hard to prove. In 2021, Lindell announced that he had compiled evidence demonstrating that China had interfered in the 2020 presidential election. He was so confident in the evidence that he launched the Prove Mike Wrong Challenge, a contest with one goal: “Find proof that this cyber data is not valid data from the November Election. For the people who find the evidence, 5 million is their reward.”

https://www.adlawaccess.com/2023/04/articles/promotions-lessons-from-the-my-pillow-guy/

Gonzalo Mon

(202) 342-8576

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

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On Tuesday April 18, FTC Chair Khan, and Commissioners Bedoya and Slaughter spent almost three hours responding to criticism and compliments before its House oversight panel. Only occasionally did the hearing cover its title subject – “Fiscal Year 2024 Federal Trade Commission Budget” – and the reaction was not encouraging for the agency. For most of the hearing the Members and Commissioners debated the FTC’s performance.

Bill MacLeod

(202) 342-8811

www.kelleydrye.com/Our-People/William-C-MacLeod

Darby Hobbs

(202) 342-8412

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

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When a Chairman opens an appropriation hearing with these words, an agency seeking funds has a tough task ahead. Undaunted, FTC Chair Lina Khan turned on the charm and often mollified her critics. Appropriators pressed her about the FTC’s proposals to ban non-compete clauses and regulate auto dealers. They complained about reports of scams and fraud on the rise while the FTC pursued subjective notions of competition. In the end, she fared better than all the Commissioners did a week earlier in oversight hearings, but she did not hear an endorsement of her budget request.

Bill MacLeod

(202) 342-8811

https://www.kelleydrye.com/Our-People/William-C-MacLeod

Darby Hobbs

(202) 342-8412

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

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The FTC took unprecedented action yesterday when it moved to impose what it describes as a “blanket prohibition” preventing the company from monetizing young people’s data. The FTC contends that this prohibition is warranted as a result of repeated violations of Meta’s 2020 consent order (“Proposed Order”).

https://www.adlawaccess.com/2023/05/articles/ftc-attempts-end-run-to-ban-meta-from-monetizing-minors-data/

Aaron Burstein

(202) 342-8453

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

Alysa Hutnik

(202) 342-8603

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

John Villafranco

(202) 342-8423

https://www.kelleydrye.com/Our-People/John-E-Villafranco

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