For the second time in as many months, the Federal Trade Commission (FTC) last week announced a settlement alleging that a company’s the use and disclosure of consumers’ health information for online advertising violated the law. The BetterHelp settlement indicates that the FTC takes a broad view of what constitutes “health information,” but it raises questions about how the FTC will apply its reinterpretation of the Health Breach Notification Rule under its September 2021 policy statement.

https://www.adlawaccess.com/2023/03/articles/ftc-to-advertisers-were-tracking-your-use-of-health-information/

Aaron Burstein

(202) 342-8453

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

Laura Riposo VanDruff

(202) 342-8435

https://www.kelleydrye.com/Our-People/Laura-Riposo-VanDruff

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Last week, as severe weather hit the country, price gouging laws were triggered ranging as far as California to Kentucky. And as we’ve previously reported, complying with the varied state price gouging laws can be tricky, especially where they use undefined terms like “excessive” or “exorbitant” to define price gouging. Last week the New York Attorney General announced proposed rules designed strengthen enforcement of New York’s price gouging law, which was last updated in 2020 to grant the Office of the Attorney General (or “OAG”) rulemaking authority. The rules would provide some needed clarity to the existing law, but would also impose new restrictions.

https://www.adlawaccess.com/2023/03/articles/ny-attorney-general-proposes-price-gouging-rules/

Paul Singer

(202) 342-8672

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

Gonzalo E. Mon

Phone: (202) 342-8576

Email: [email protected]

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

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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This past week, the internet lit up over whether it was okay for President Biden and the First Lady to order the same dish at the Red Hen. In this issue, we invite you to read the February highlights on clean labeling false advertising litigation, updates on green claims, thoughts on whether light beer should taste like beer, FDA’s plant-based milks draft guidance, and USDA’s enhanced authority on “organic” claims with the same level of fascination.

Kristi Wolff

(202) 342-8805

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

Cristina Ferretti

(212) 808-5057

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

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Recently, NAD released a decision in a case involving a Molson Coors ad that has received more press attention than any NAD decision in recent memory. In the ad, athletes are celebrating the completion of a difficult workout by opening a can labeled “Extremely Light Beer” and pouring the liquid over their heads while an announcer says “Light beer shouldn’t taste like water. It should taste like beer.”

Anheuser-Busch filed a challenge using NAD’s Fast-Track SWIFT process, arguing that the videos falsely disparage Michelob Ultra and other light beers by claiming that consumers find them to taste like water. Molson Coors pointed out that no competitors were named and the tagline was simply “a subjective opinion about what beer should and should not taste like, which cannot be objectively proved or disproved.” In other words, mere puffery “because it is not sufficiently specific and material enough to create expectations in consumers.” But NAD didn’t agree. It deemed Coors’ claim measurable and objective and found it to be unsupported by evidence.

https://www.adlawaccess.com/2023/02/articles/nad-pours-water-on-puffery-arguments/

John Villafranco

(202) 342-8423

kelleydrye.com/Our-People/John-E-Villafranco

Gonzalo Mon

(202) 342-8576

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

Jennifer Fried

(202) 719-6022

https://www.kelleydrye.com/Our-People/Jennifer-E-Fried

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As we’ve described here, the Senate made major strides last year on legislation to protect children’s privacy and safety online. Indeed, two bipartisan bills sailed through a Commerce Committee markup, though they didn’t ultimately make it to the floor for a Senate vote. This year, kids’ privacy is once again getting attention, beginning with a February 14 Senate Judiciary Committee hearing on the issue. Members used the hearing to tout last year’s bills and mention some new ones, too. They also touched on other top-of-mind issues involving the tech industry, such as Section 230 reform and encryption.

https://www.adlawaccess.com/2023/02/articles/senate-judiciary-hearing-on-kids-privacy-sunny-with-a-chance-of-section-230-reform/

Jessica Rich

(202) 342-8580

https://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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Twitter became the first social media platform to expressly allow cannabis advertising.

https://www.adlawaccess.com/2023/02/articles/twitter-is-the-first-major-social-media-platform-to-expressly-allow-cannabis-advertising/

Kristi Wolff

(202) 342-8805

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

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If you tell your friends about your new year’s resolutions, odds are that most of those friends won’t push you for too much detail on how you plan to achieve your goals. But if those friends work at NAD, you might expect some pointed questions about whether you have a solid plan, whether you’ve started to work on that plan, and whether your goals are realistic. They’re not going to let you get by on good intentions alone.

https://www.adlawaccess.com/2023/02/articles/nad-finds-advertiser-cant-support-aspirational-net-zero-claims/

Gonzalo Mon

(202) 342-8576

https://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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On February 9, the FTC provided the CFPB with its annual summary of activities enforcing the Equal Credit Opportunity Act (ECOA). The release of this summary provides a great opportunity for a round-up and some updates on new developments in this space over the past year.

https://www.adlawaccess.com/2023/02/articles/ecoa-and-beyond-recent-updates-and-developments-in-discrimination-enforcement/

Ioana Gorecki

(202) 342-8417

Bio - www.kelleydrye.com/Our-People/Ioana-Gorecki

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For the 26+ years I served at the FTC, the agency always described itself as a “law enforcement agency,” not a “regulator.” That’s because the FTC spent most of its resources on enforcing the FTC Act and other laws passed by Congress, not creating new regulations on its own. While it would be an exaggeration to say that the FTC has become a regulator in the mold of the federal banking agencies or CFPB, Chair Khan is certainly pushing the FTC in that direction. Indeed, the agency’s rulemaking activity has dramatically increased under her tenure.

https://www.adlawaccess.com/2023/02/articles/is-the-ftc-a-regulator-it-sure-seems-to-be-moving-in-that-direction/

Jessica Rich

(202) 342-8580

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

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Fake reviews continue to be a hot topic in consumer protection. In 2022, we reported that six states and the Federal Trade Commission filed a lawsuit against Roomster – a platform through which people can find rooms and roommates – along with its owners, alleging that they had “inundated the internet with tens of thousands of fake positive reviews to bolster their false claims that properties listed on their Roomster platform are real, available, and verified.” At the same time, the regulators announced a settlement with an individual who allegedly sold Roomster many of the fake reviews.

https://www.adlawaccess.com/2023/02/articles/ftc-and-state-ags-can-continue-joint-case-over-fake-reviews/

Paul Singer

(202) 342-8672

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

Gonzalo E. Mon

Phone: (202) 342-8576

Email: [email protected]

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

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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