Ad Law News And Views – September 21, 2023 – Advertising, Marketing & Branding

Welcome back to Ad Law News and Views.

Summer Vacations, Upcoming Webinars and more!

The summer seemed to fly by. We hope your summer months were
filled with time to relax and reset. Many of our Ad Law attorneys
spent their summer vacations with loved ones in locations around
the world. We invite you to play:



Your choices are:

  • Selinunte, Sicily

  • Wellfleet, MA

  • Fethiye, Turkey

  • Keystone, SD

  • Hilton Head Island, SC

  • Adirondack Mountains, NY

  • Yarmouth, MA

  • Paris, France

  • Arizona River

  • Rehoboth Beach, DE

You may find the answers at the bottom of this newsletter.

IAPP Privacy. Security. Risk.

The IAPP PSR Conference will be held in San Diego, October 5
– 6, 2023. If you are attending the conference, we invite you
to join us at several sessions where Kelley Drye attorneys are on
the panel.

  • Thursday, October 5 – Generative AI: Privacy and
    Ethical Considerations for Your Business
    , Alysa Hutnik

  • Thursday, October 5 – Don’t Let Your PIA be a
    PITA! Reinvigorate Your Approach to Privacy Assessments
    Aaron Burstein

  • Friday, October 6 – A Clean Start for Marketing
    and Advertising with First-Party Data
    , Rod

  • Friday, October 6 – Balancing the Risks and
    Rewards of Consumer Location
    , Laura VanDruff

We also invite you to participate in a pre-conference workshop,
held on October 4 from 12:00 p.m. – 4:30 p.m. PT at the
Pendry Hotel, where we will discuss we discuss data deletion,
sensitive personal information, and data protection impact
assessments. This workshop is highly collaborative and



Wednesday, September 27, 2023 at 2:00 pm ET

Navigating Critical Components of any Privacy Program

Companies are prioritizing privacy now more than ever.
Understanding the many elements needed in an effective privacy
program to manage compliance and mitigate risks is vital.

Kelley Drye invites you to join us on Wednesday, September 27, from
2:00 p.m. – 3:00 p.m. for a webinar: Navigating Critical
Components of any Privacy Program. Tune in as we share practical
insights on some of the most pressing privacy program topics.

  • State Privacy Laws – Navigating the Onslaught of New Laws

    • Where do we stand?

    • What can we predict?

  • Sensitive Personal Information

    • Legal trends

    • Spotlight on particular types of SPI

    • Practical tips

  • Data Protection Impact Assessment

    • What DPIAs are and where and when they are required

    • Required elements

    • Essential Considerations

  • Data Deletion

    • Right to delete

    • Exceptions to deletion requirement

    • Develop a retention policy


Thursday, September 28, 2023 at 2:45 pm

Embracing the Beauty of New Technologies While Avoiding
the Dangers of Data Privacy Violations

A panel of legal professionals will analyze the industry’s
response to the use of AI, ML, AR, VR technologies and the
Metaverse, identify privacy and ethics concerns associated
biometric technologies and try-on tools, explore state legislation
such as the California Consumer Privacy Act (CCPA), the Biometric
Information Privacy Act (BIPA) and related enforcement actions, and


Thursday, October 19, 2023 at 2:00 pm ET

New Hampshire Attorney General’s Office

Guest Speakers:

  • New Hampshire Attorney General John Formella

  • Brandon Garod, Senior Assistant Attorney General, Consumer
    Protection and Antitrust Bureau



Get these and other stories in real time when you subscribe to
the Ad Law Access blog here or visit the
Advertising and Privacy Law Resource Center here.

FTC Confirmation
Hearings Promise a Return to Bipartisanship

Those who were looking for big fireworks at yesterday’s
confirmation hearings for three FTC Commissioners were likely
disappointed by the relatively business-as-usual nature of the
proceedings. Yes, certain Senators decried the low morale at the
agency, alleged ethical breaches, continuing telework, and loss of
the FTC’s characteristic bipartisanship. However, those remarks
were not unexpected and were generally directed at Chair Lina Khan,
who was in the audience but not in the witness chair.

State AGs and CFPB Stop
Tempoe’s Rhythm

A bipartisan coalition of 42 Attorneys General, led by Iowa,
Nebraska, and Tennessee, and the Consumer Financial Protection
Bureau (CFPB) announced a $35
million settlement with
Tempoe LLC, a specialty consumer finance company. The multistate
settlement resolves claims that the company’s marketing sales
practices misled consumers that they signed up for an installment
plan or credit sale to purchase personal goods and services, when
it fact they ended up leasing the items.

FTC Recommends
Sharpening Blurred Lines When Advertising to Kids

In October, we posted about the
FTC’s day-long workshop on “Protecting Kids from Stealth
Advertising in Digital Media” and wondered what the FTC might
be planning. Last week, we got an answer when the FTC released a
“Staff Perspective” on Protecting Kids from
Stealth Advertising in Digital Media
. With a foreword written
by Sam Levine, Director of the FTC’s Bureau of Consumer
Protection, the staff recommends advertisers implement five key
practices to protect kids from the harms of “stealth

California Just Passed
SB 362: Whatever You Think About the Merits of the Law, It’s a
Big Deal

As we’ve discussed here, data brokers
have been in the hot seat lately, with the enactment of new state
data broker registry laws, aggressive enforcement by the FTC, a looming rulemaking
by the CFPB to extend the FCRA’s reach to a broader class of
data brokers, multiple federal bills to restrict data broker sales,
and a recent meeting at
the White House to discuss “harmful data broker
practices” and provide further impetus for regulation.

Texas Court Puts Hold on
CFPB’s Use of Unfairness Authority to Include

As the Supreme Court deliberates over the Fifth Circuit’s
that the CFPB’s funding method is unconstitutional,
another court in the Fifth Circuit dealt a blow to the CFPB’s
aggressive agenda. On Friday, the District Court for the Eastern
District of Texas invalidated the
Bureau’s March 2022 updates to its examination manual that
instructed CFPB examiners to determine whether financial
institutions and service providers adequately protect against
discrimination, including disparate impact. If it holds in likely
appeals, the decision could have a far-reaching impact on both the
CFPB’s and the FTC’s attempts to use their unfairness
authority to bring enforcement to remedy perceived discriminatory
practices, as well as other attempts by both agencies to broadly
interpret statutory grants of authority and use them in novel and
untested ways.

Can’t Lie About Your
AI: The FTC’s Most Recent Case with AI Allegations

The FTC is not holding its breath on whether Congress will enact
AI legislation. Instead, as we have previously reported, the FTC is
relying on its own toolkit and has warned businesses that false or
unsubstantiated claims related to AI could run afoul
of the FTC Act.

Practical Privacy:
Lessons from the Front Lines

With the continuing onslaught of state privacy laws, it’s
easy to become overwhelmed by the number of new legal obligations
while also trying to stay focused on identifying and mitigating the
most pressing legal and business risks. Over the past couple of
months, we’ve had the opportunity to meet with privacy
professionals to hear about their top challenges and offer some
practical perspectives of our own.

FDA’s Draft Guidance
on Cosmetics Registration and Listing: A Good Reminder of
End-of-Year Deadlines

Earlier this month, in a step toward implementing the
Modernization of Cosmetics Regulation Act of 2022 (MoCRA), FDA issued a draft guidance document
titled “Registration and Listing of Cosmetic Product
Facilities and Products: Guidance for Industry.” For those who
may be new to MoCRA, this legislation significantly overhauled FDA
oversight of the cosmetics industry by requiring manufacturers,
packers, and distributors, to comply with a range of new standards,
including mandatory product and facility registration, creation of
safety substantiation information, and adverse event reporting
subject to a December 2023 deadline (per the one-year timeframe set
per statute). Additional compliance measures, including issuance of
good manufacturing practices regulations, updated fragrance
allergen disclosures, and domestic contact labeling are expected in
2024 and thereafter.

FTC and Six States
Announce Settlement Over Fake Reviews and Claims

A year ago, the FTC and six states filed a lawsuit against
Roomster and its owners, alleging that they had posted “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 (doing business as
AppWinn) who allegedly sold Roomster many of the fake reviews.
Today, the FTC and states announced a settlement Roomster and its
owners that includes some notable provisions.

In Your Face:
Connecticut District Court Denies Motion To Dismiss in Coppertone
“FACE” Sunscreen False Ad Case

A few months ago when sun-seeking consumers were eagerly
anticipating the start of summer, we wrote about a consumer false
advertising case involving Beiersdorf’s Coppertone sunscreen
brand. In that case, plaintiff 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.

NAD Addresses Apples and
Oranges in Price Claims

Google recently ran two commercials for its YouTube TV service,
each of which ended with the following tagline: “More than
cable. For $600 less than cable.” A disclosure at the bottom
of the screen explained: “Annual average savings based on a
study by SmithGeiger of the published cost of comparable standalone
cable in the top 50 Nielsen DMAs, including all fees, taxes,
promotion pricing, DVR box rental and service fees, and a 2nd cable

Mounting Focus on Data
Brokers: Is More Regulation Coming?

During the past year, there’s been a flurry of regulatory
activity related to data brokers. Whether in Congress or state
legislatures, at federal agencies or the White House, many
policymakers are pushing in the direction of increased regulation.
For those not following this issue closely, here’s a snapshot
of some key developments, starting with some history.

Answers to: Guess the Vacation Location

1 – Arizona River

2 – Yarmouth, MA

3 – Paris, France

4 – Selinunte, Sicily

5 – Hilton Head Island, SC

6 – Keystone, SD

7 – Wellfleet, MA

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.