On January 24, 2025, the U.S. Court of Appeals for the Eleventh Circuit issued a ruling which vacated the so-called ​“one-to-one” consent requirement for marketing calls and texts adopted by the Federal Communications Commission (FCC) in its implementing rules for the Telephone Consumer Protection Act (TCPA). In its ruling, the court held that the rule adopted by the FCC exceeded the agency’s statutory authority because it conflicted with the plain meaning of ​“prior express consent” in the TCPA. Below we summarize the court’s ruling and explain what it means for businesses going forward.

https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/eleventh-circuit-vacates-tcpa-11-consent-rule

Alysa Hutnik
ahutnik@kelleydrye.com
(202) 342-8603
www.kelleydrye.com/people/alysa-z-hutnik

Jenny Wainwright
jwainwright@kelleydrye.com
(202) 342-8649
https://www.kelleydrye.com/people/jennifer-rodden-wainwright

Hosted by Simone Roach

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Eleventh Circuit Vacates TCPA 1 - 1 Consent Rule

A New York health privacy law has moved quickly through both chambers of the state legislature and is up for review by Governor Kathy Hochul. The New York Health Information Privacy Act (“NYHIPA”) bears striking resemblance to similar laws in Washington, Nevada, and Connecticut, but also adopts novel provisions that could make this one of the most stringent privacy laws on the books in the U.S.

https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/new-year-new-health-privacy-law-what-you-need-to-know-about-nyhipa

Alysa Hutnik
ahutnik@kelleydrye.com
(202) 342-8603
www.kelleydrye.com/people/alysa-z-hutnik

Aaron Burstein
aburstein@kelleydrye.com
(202) 342-8671
www.kelleydrye.com/people/aaron-j-burstein

Chris Tarbell
ctarbell@kelleydrye.com
(202) 342-8813
https://www.kelleydrye.com/people/christopher-s-tarbell

Alex Schneider
aschneider@kelleydrye.com
(202) 342-8634
www.kelleydrye.com/people/alexander-i-schneider

Meaghan Donahue
mdonahue@kelleydrye.com
(202) 945-6622
www.kelleydrye.com/people/meaghan-m-donahue

Subscribe to the Ad Law Access blog - www.kelleydrye.com/subscribe

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View the Advertising and Privacy Law Resource Center - www.kelleydrye.com/advertising-and-privacy-law

Find all of our links here linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

New Year, New Health Privacy Law? – What You Need To Know About NYHIPA

Is P&G’s sustainability messaging misleading consumers?

A new class action lawsuit accuses Procter & Gamble of greenwashing, alleging that its "Keep Forests as Forests" campaign and "Protect-Grow-Restore" promises don’t hold up under scrutiny. The case claims that P&G’s Charmin toilet paper is sourced from clear-cut boreal forests, with replanting efforts creating so-called "Frankenforests"—single-species tree plantations treated with chemical herbicides.

The lawsuit also challenges P&G’s use of FSC and Rainforest Alliance logos, arguing that they mislead consumers about the company’s sustainability efforts. Plaintiffs cite violations of the FTC’s Green Guides, shareholder criticism, and competitor practices as key factors in their claim.

Read the full analysis here: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/p-g-accused-of-greenwashing-and-creating-frankenforests#:~:text=Earlier%20this%20month%2C%20a%20group,following%20through%20with%20its%20sustainable

Hosted by: Simone Roach
Blog by: Katie Rogers & Gonzalo Mon

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P&G Accused of Greenwashing and Creating "Frankenforests"

Revolve, a fashion e-commerce brand, recently faced scrutiny from the National Advertising Division (NAD) over influencer disclosures in its gifting program. In this episode, Gonzalo Mon unpacks NAD’s findings and what they mean for influencer marketing.

NAD’s decision raises key compliance concerns under the FTC’s Endorsement Guides, from unclear disclosure instructions to the effectiveness of hashtags like #giftedbyrevolve. We’ll explore why NAD found Revolve’s approach insufficient, how brands can improve influencer agreements, and why clear, unmistakable disclosure language matters.

Read the full analysis from Gonzalo Mon on the Ad Law Access blog: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/nad-decision-addresses-gifting-to-influencers


Hosted by: Simone Roach

NAD Decision Addresses Gifting to Influencers

State AGs Double Down on DEI (and ESG)

Republican state attorneys general are ramping up their scrutiny of corporate DEI and ESG policies. In this episode, we discuss recent letters sent by state AGs to major financial institutions and Costco, challenging diversity initiatives and climate commitments.

Read the full analysis from Paul Singer, Abigail Stempson, and Beth Bolen Chun on the Ad Law Access blog: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/state-ags-double-down-on-dei-and-esg

Hosted by Simone Roach

State AGs Double Down on DEI (and ESG)

The DOJ has released new guidance on website accessibility programs, outlining key steps organizations should take to ensure compliance with the ADA. This episode breaks down the recommendations, including setting clear policies, regular testing, and vendor accountability.

Read more: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/doj-provides-guidance-on-website-accessibility-programs#:~:text=The%20DOJ%20recommends%20that%20entities,warranties%3B%20(4)%20require%20vendors

#ADA #WebsiteAccessibility #DOJGuidance #DigitalCompliance #KelleyDrye

DOJ Provides Guidance on Website Accessibility Programs

Hosted by Simone Roach, this episode breaks down ten things we, as counsel to the business community, would like to see from the agency under Chair Andrew Ferguson: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/a-respondents-wishlist-10-changes-businesses-would-like-to-see-from-the-new-ftc-bureau-of-consumer-protection
#FTC #RegulatoryChanges #ConsumerProtection #BusinessLaw #FederalOversight #KelleyDrye

A Respondent's Wishlist - 10 Changes Businesses Would Like to See From the New FTC Bureau of Consumer Protection

Paul L. Singer, Abigail Stempson, Beth Bolen Chun, and Andrea deLorimier

As we’ve discussed previously, price gouging has been a focus for enforcers in the past few years, and 2025 is proving no different. In the past month alone, California Attorney General Rob Bonta announced that the California DOJ has opened active investigations into price gouging in the aftermath of the Los Angeles fires (and Los Angeles county increased its penalty for price gouging to $50,000 per violation), New York Attorney General Letitia James issued a warning against price gouging for eggs and poultry amid the national bird flu outbreak, and Arkansas Attorney General Tim Griffin sued Capital City Tree Service for price gouging allegations stemming from severe weather events in the state. This week, Connecticut Attorney General William Tong joined the fray by proposing price gouging legislation that, if passed, would put a novel spin on his state’s continued fight against price gouging. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/connecticuts-shrinkflation-legislation-expanding-state-ags-price-gouging-authority-for-shrinking-product-sizes#:~:text=According%20to%20Attorney%20General%20Tong,do%20not%20also%20reduce%20price.

Connecticut's "Shrinkflation" Legislation - Expanding State AG's Price Gouging Authority for Shrinking Product Sizes

Gonzalo E. Mon

Last year, T-Mobile ran a commercial in which Snoop Dogg breaks down Patrick Mahomes’ ​“top three plays of the day” with additional commentary from influencer Kai Cenat. Mahomes scrambles into a T-Mobile store with a ​“little shimmy, shimmy shake” (like he’s chasing an ice cream truck), holds up an iPhone 16 Pro ​“like a baby lion,” and then takes T-Mobile’s savings and ​“calls it a day.” Snoop tells the audience that families who use T-Mobile can save 20% a month ​“versus the other big guys.” 

https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/narb-disagrees-with-nad-on-who-the-big-guys-are#:~:text=Accordingly%2C%20NAD%20held%20that%20T,category%20with%20significant%20market%20shares.

NARB Disagrees with NAD on who the ​“Big Guys” Are

Paul L. Singer, Abigail Stempson, Beth Bolen Chun, and Andrea deLorimier

A coalition of all 23 democratic attorneys general filed an amicus brief in the U.S. District Court for the District of Maryland warning against efforts by the Trump Administration to defund and disband the Consumer Financial Protection Bureau (CFPB). The brief comes in the wake of the outgoing CFPB’s call for state action, in a foreshadowing of events to come.

In their brief, the coalition, co-led by New Jersey Attorney General Matthew J. Platkin and New York Attorney General Letitia James, argues that the administration’s efforts to eliminate the CFPB will harm consumers by preventing them from utilizing the CFPB’s robust complaint reporting system to raise issues of fraud or deception. 

https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/multistate-coalition-files-amicus-brief-warning-against-efforts-to-dismantle-the-cfpb

Multistate Coalition Files Amicus Brief Warning Against Efforts to Dismantle the CFPB

f you have been following our blogs, it should be no surprise that the Attorneys General remain focused on combatting Organized Retail Crime (ORC) using available state and federal tools.

The Attorneys General of Connecticut, Georgia, Illinois, and South Carolina co-led a bipartisan letter joined by 34 other Attorneys General (AGs) to encourage Congress to help ​“combat the nationwide organized retail crime epidemic” as retailers across the country have been forced to close stores due to financial losses and physical dangers from crime. These store closures, the AGs explain, often result in underrepresented communities losing access to necessary consumer goods. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/ags-ask-congress-to-take-further-action-on-orc

Paul L. Singer, Beth Bolen Chun, Abigail Stempson

AGs Ask Congress to Take Further Action on ORC

Aaron J. Burstein and Laura Riposo VanDruff: As its first policy initiative under Chair Andrew Ferguson, the FTC announced a Request for Information (RFI) ​“to better understand how technology platforms deny or degrade users’ access to services based on the content of their speech or affiliations, and how this conduct may have violated the law.” The premise of the RFI is that ​“technology platforms” – which include a wide variety of ​“internet services” – ​“deny or degrade (such as by ​“demonetizing” and ​“shadow banning”) users’ access to services based on the content of the users’ speech or their affiliations, including activities that take place outside the platform,” which the RFI refers to as ​“adverse actions.” The RFI solicits comments from consumers who have experienced limits on the ​“ability to share . . . ideas or affiliations freely and openly,” including from ​“current and former employees of technology platforms” who may have knowledge of platforms’ motivations behind their decisions and policies. 

FTC Takes Step to End “Tyranny of Big Tech” with RFI

What’s going on with Michigan’s consumer protection statute? How does the Michigan Attorney General’s Office operate, and what are its enforcement priorities? In this episode of the Ad Law Access Podcast, your host Simone Roach delivers insights from Paul L. Singer, Abigail Stempson, Beth Bolen Chun, and Andrea deLorimier, based on their recent blog post recapping their recent webinar with Michigan Attorney General Dana Nessel’s discussion on these key topics: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/state-ags-and-consumer-protection-what-we-learned-from-michigan

With potential changes to Michigan’s consumer protection laws and new enforcement priorities on the horizon, this is an important listen for businesses navigating regulatory risks in the state.

State AGs and Consumer Protection- What We Learned From … Michigan

New York Attorney General Letitia James reached a settlement with app developer Saturn Technologies following an investigation into the company’s privacy practices. Saturn’s calendar app, marketed to high school students, promised an exclusive community but allegedly failed to deliver on its security claims. The settlement includes a $200,000 payment, stricter privacy safeguards, and marketing compliance requirements.

In this episode of the Ad Law Access Podcast, your host Simone Roach delivers insights from Alysa Z. Hutnik, Paul L. Singer, Beth Bolen Chun, and Abigail Stempson, who break down the key takeaways from the AG’s action. With teen privacy and social media under increasing scrutiny, this case underscores the importance of transparency in data collection, user verification, and marketing practices.

Blog post here: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/new-york-ag-settles-with-school-calendar-app-saturn

New York State AG Settles with School Calendar App, Saturn

As news hit that President Trump fired the two remaining Democratic FTC Commissioners Alvaro Bedoya and Rebecca Slaughter, many questions abound. Would Commissioners Bedoya and Slaughter contest the dismissals? (The answer there appears to be an emphatic yes – with both issuing statements last night to that effect.) Another question: what will this mean for day-to-day operations at the Commission, including the ability for the FTC to continue to bring actions with only two commissioners of the same party, an issue my colleagues cover in a separate post here.

Perhaps the biggest question – with implications far beyond our day-to-day advertising and privacy worlds – is whether the Supreme Court will overturn its 1935 decision in Humphrey’s Executor, a decision that forms the longstanding constitutional basis for independent agencies like the FTC, Consumer Product Safety Commission (CPSC), Securities and Exchange Commission (SEC), Federal Communications Commission (FCC), Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB), amongst others. As a refresher, in Humphrey’s Executor, the Supreme Court upheld the insulation of FTC Commissioners from removal by the President at will – finding that the Constitution permits Congress to create expert independent agencies led by a group of principal offers removable only for cause.

Firings of Democratic Commissioners Leave FTC In Flux and Tee Up Revisiting of Humphrey's Executor

President Trump fired the two Democratic members of the Federal Trade Commission, Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter. President Trump’s action leaves Chair Andrew Ferguson (R) and Commissioner Melissa Holyoak (R) as the only two members of the Commission, which has many wondering: can the FTC take formal action by a 2-0 vote cast by members of the same party? Can Trump refuse to appoint new Democratic members? What happens next for Commissioners Bedoya and Slaughter?

See the blog post from John E. Villafranco and Andrea deLorimier: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/can-two-ftc-commissioners-of-the-same-party-constitute-a-quorum

Podcast hosted by Simone Roach

Can Two FTC Commissioners of the Same Party Constitute a Quorum

Gonzalo E. Mon

DREO advertises that it is the ​“No. 1 Fan and Heater Brand” in the United States. Lasko, a competitor, thinks that it is, in fact, the ​“number 1” brand in both of those categories. Because there can’t be two ​“number 1” brands, Lasko filed a challenge before the NAD to dispute its competitor’s claims.

NAD Considers Whether "Number 1" Claims Can be Qualified

Donnelly McDowell, Ioana Gorecki

Yesterday, we covered President Trump’s firing of Democratic FTC Commissioners Alvaro Bedoya and Rebecca Slaughter and explored whether a two-member Commission constitutes a quorum for the agency to take formal action.

Today, we take a look at the FTC’s first 50 days under Chair Andrew Ferguson, reflecting on key developments and early insights relating to the agency’s consumer protection agenda. So far, the FTC has issued several business blog posts, formed two new task forces, initiated information-gathering efforts, and announced three new enforcement actions. While the new Commission leadership continues to shape its priorities, early indications suggest a strong focus on combating consumer fraud and scrutinizing content censorship practices by large technology companies.

Fraud Prevention, Worker Protection, and Fighting Alleged Big Tech Censorship: A Roundup of the New FTC’s Agenda after the First 50 Days

Katie Rogers, Gonzalo Mon

Last week, consumers in four states filed a proposed class action against Amazon, accusing the company of greenwashing by misleading consumers about the sustainability of the company’s Amazon Basics line of paper products. The 123-page complaint covers a lot of ground, but here are some of the key allegations

Amazon Hit With Greenwashing Lawsuit

Beth Bolen Chun, Salim Rashid, Gonzalo E. Mon

Businesses offering subscriptions or other ongoing services continue to face a growing, and increasingly complex, patchwork of state auto-renewal laws (ARLs). 2025 brings a fresh wave of developments across the states.

In addition to newly introduced and enacted ARL legislation this session, a number of state laws are now in effect as of January 1, 2025. Together, these proposed and new laws reflect a continued trend toward more prescriptive disclosure, notice, and cancellation requirements, with each state introducing its own unique take.

Auto-Renewal 2025 Roundup

Paul L. Singer, Alysa Z. Hutnik, Beth Bolen Chun, Abigail Stempson, Jennifer Rodden Wainwright

On March 17, a bipartisan group of attorneys general from 27 states and the District of Columbia filed an amicus brief in the Eleventh Circuit Court of Appeals in support of the National Consumer Law Center’s proposed petition for rehearing en banc of the court’s decision to overturn the FCC’s so-called ​“one-to-one” consent rule for telemarketing calls and texts under the Telephone Consumer Protection Act (TCPA). The rule, intended to address what the FCC called the ​“lead generator loophole,” would have amended the definition of ​“prior express written consent” by requiring a consent agreement to be specific to ​“no more than one identified seller” and be ​“logically and topically associated with the interaction that prompted the consent.”

State AGs Support Effort to Revive TCPA 1:1 Consent Rule

Gonzalo E. Mon

As part of its on-going monitoring of influencer campaigns, NAD recently launched an inquiry to assess whether influencers Brittany Mahomes and Lana Del Rey had adequately disclosed their relationship to Skims Body – a fashion brand that specializes in underwear and loungewear – in various Instagram posts.

NAD Reviews More Influencer Posts

Donnelly L. McDowell, Ioana Gorecki

Today, the Senate confirmed Mark Meador as the newest Republican commissioner of the Federal Trade Commission with a 50-46 vote along party lines. Meador’s confirmation solidifies a Republican majority on the Commission, following the recent dismissals of Democratic commissioners Alvaro Bedoya and Rebecca Kelly Slaughter by President Trump, which we covered previously.

Mark Meador Confirmed as Newest Republican FTC Commissioner

Gonzalo E. Mon, Christie Grymes Thompson

In 2020, plaintiffs filed a class action complaint in California federal court against Bigelow Tea, alleging that the company falsely represents that its teas are made in the United States, when the tea leaves are actually grown and processed abroad. Among other things, the plaintiffs pointed to Bigelow’s use of term ​“Manufactured in the USA” on the backs of certain packages.

Jury Awards Tea Drinkers $2.36 Million in Made in USA Dispute

Gonzalo E. Mon
A recent class action asks how it’s possible that a Chinese company, with allegedly ​“no fashion designers or background, selling flea-market quality clothes, became a giant in the fast-fashion industry in the US?” The answer, according to the complaint, ​“is simple: undisclosed endorsements on social media.” In this case, the plaintiffs allege that Shein engages influencers to promote its products without disclosing their relationships to the company.

Shein Faces Class Action Over Influencer Posts

Paul L. Singer, Beth Bolen Chun, Abigail Stempson, Andrea deLorimier
Last week, the Kelley Drye State AG team attended the National Association of Attorneys General (NAAG) Attorney General Symposium. The panels included a number of topics of importance to state attorneys general including cell phone jamming in prisons, social engineering or ​“pig butchering” scams, human trafficking, youth and young adult mental health especially pertaining to student athletes, cannabis legislative trends and enforcement, and disaster preparedness and response. In addition, below we’ve highlighted some of the other topics discussed by AGs.

NAAG Attorney General Symposium 2025

Gonzalo E. Mon
Rascals advertises that the Hydrolock Core in its diapers ​“holds up to 25 x its weight” and ​“absorbs 15 x its weight.” P&G thought that claim was full of crap and filed a challenge before the NAD, arguing that Rascals supported its claims with tests that didn’t mirror real-world use. NAD’s decision holds valuable lessons for advertisers across industries.

NAD Decision Addresses Torture Tests

Paul L. Singer, Beth Bolen Chun, Abigail Stempson, Andrea deLorimier
Florida Attorney General James Uthmeier sued Snap, Inc., the operator of the social media platform Snapchat, this week for violations of Florida’s HB 3 (§§ 501.1736–.1738, Fla. Stat. (2024)) and the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The complaint alleges that Snapchat is a covered social media company under HB 3 because the app features allegedly addictive features that unfairly harm its users. The suit further asserts that Snap has violated that statute by permitting 13-15 year olds to obtain accounts inappropriately.

Florida Sues Snap Using New Social Media Law and Old UDAP Theories

Gonzalo E. Mon
Yesterday, we posted about a decision in which P&G challenged claims that Rascals made about the absorption capabilities of its diapers. Rascals also advertised: ​“210,000+ 5-star reviews of Rascals Products.” P&G thought something about that claim smelled funny and challenged that, too

NAD Decision Addresses Review Claims

As we have written about extensively on the Ad Law Access blog, consumers continue to grow more environmentally conscious and demand products that reflect this concern. To meet consumer demands and as part of social responsibility initiatives, companies are increasing their “sustainable” practices, recycling materials, upcycling other products, and working to reduce waste and environmental harms.  As companies look to communicate their efforts to consumers, they must proceed with caution to avoid allegations of “greenwashing” or overstating the environmental benefits.

On the latest episode of the Ad Law Access Podcast, chair of the Advertising and Marketing practice Christie Thompson and associate Lee Baumgardner discuss the key regulatory requirements (the FTC’s “Green Guides”) and practical tips for companies to consider when engaging in green marketing in the United States. 

For more information on these and other topics, visit:	

•	Advertising and Privacy Law Resource Center - https://www.kelleydrye.com/Advertising-and-Privacy-Law-Resource-Center
•	Ad Law Access Blog - https://www.adlawaccess.com/ 
•	Ad Law News and Views Newsletter - https://www.kelleydrye.com/News-Events/Publications/Newsletters/Ad-Law-News-and-Views
•	Kelley Drye’s Advertising and Marketing Practice - https://www.kelleydrye.com/Our-Practices/Regulatory-Government-Relations/Advertising-Counseling-and-Compliance

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The Ad Law Access podcast, now available daily, is powered by Kelley Drye’s Advertising and Privacy / Data Security teams. 

Hosted by Simone Roach, the daily podcast complements the award-winning Ad Law Access blog, and provides updates and analysis on advertising, marketing, and privacy / data security law.

Please visit the Advertising and Privacy Law Resource Center at https://www.kelleydrye.com/Advertising-and-Privacy-Law-Resource-Center and our award winning blog at https://adlawaccess.com.

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