2022

Last week, a plaintiff filed a proposed class action against the NFL over its automatic renewal practices. The plaintiff alleges that the company used deceptive practices to automatically subscribe its Game Pass users to a new streaming service, NFL+, without their clear knowledge or consent, and that the NFL later made it difficult for them to cancel. It’s a little hard to tell from the complaint exactly what happened, but the gist of the argument is familiar.

The plaintiff alleges that when he learned that his Game Pass subscription was going to be converted to an NFL + subscription, he attempted to cancel. He found the cancellation instructions to be unclear and unintuitive, and he was charged a fee, even after he thought he had cancelled. His attempts to resolve the problem by talking to chatbots and live representatives were frustrating and didn’t help. The complaint then makes some interesting guesses about what happened behind the scenes.

https://www.adlawaccess.com/2022/10/articles/nfl-faces-automatic-renewal-lawsuit/

Gonzalo E. Mon
Phone: (202) 342-8576
Email: gmon@kelleydrye.com
Bio: www.kelleydrye.com/Our-People/Gonzalo-E-Mon

Download the Ad Law Access App https://www.kelleydrye.com/News-Events/News/Press-Releases/Kelley-Drye-Unveils-First-of-its-kind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach
Produced by Jeff Scurry

NFL Hit with Automatic Renewal Lawsuit (and Hyperbole)

On October 4th, the FDA and CDC announced that the agencies have entered into a Memorandum of Understanding, renewing their collaboration to reduce the occurrence of foodborne illness in retail and foodservice establishments.  The stated purpose of the partnership is to “help increase the consistency and capacity of retail food protection programs across the country, promote a general culture of food safety, and facilitate continued communication between the FDA and CDC in order to assist state, local, tribal, territorial, and industry partners.

https://www.adlawaccess.com/2022/10/articles/fda-and-cdc-agree-to-partner-to-reduce-foodborne-illness-in-retail-and-foodservice-establishments/

Kristi L. Wolff
kwolff@kelleydrye.com
(202) 342-8805
https://www.kelleydrye.com/Our-People/Kristi-L-Wolff

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our Linktree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach
Produced by Jeff Scurry

FDA and CDC Agree to Partner to Reduce Foodborne Illness in Retail and Foodservice Establishments

Celebrities generally don’t like when companies use their images or names without permission. For example, Jennifer Love Hewitt didn’t love when a company used her image to promote a vitamin spray, and Michael Jordan seemed pretty upset when a grocery store used his name to promote a steak. Now, 50 Cent seems downright angry that his picture is allegedly being used by a plastic surgeon to promote “male sexual enhancement procedures.”

https://www.adlawaccess.com/2022/10/articles/50-cents-a-euphemistic-eggplant-and-the-right-of-publicity/

Gonzalo E. Mon
Phone: (202) 342-8576
Email: gmon@kelleydrye.com
Bio: www.kelleydrye.com/Our-People/Gonzalo-E-Mon

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach
Produced by Jeff Scurry

50 Cents, a Euphemistic Eggplant, and the Right of Publicity

The FTC has long used policy statements, public workshops, reports, and warning letters to influence the marketplace and communicate its thinking about key issues and aspects of its mission. Examples from my tenure at the FTC include workshops and reports on big data, data brokers, mobile payments, and the internet of things; policy statements on deceptively formatting advertisements and homeopathic drug claims; and warning letters to a range of companies making health claims (see here, here, and here, for instance).

https://www.adlawaccess.com/2022/10/articles/the-ftcs-policy-statements-reports-and-warning-letters-why-are-there-so-many/

Contact  
Jessica L. Rich 
 jrich@kelleydrye.com  
(202) 342-8580 
 Bio - www.kelleydrye.com/Our-People/Jessica-L-Rich 

Subscribe to the Ad Law Access blog - https://www.adlawaccess.com/subscribe/ 

Subscribe to the Ad Law News Newsletter - https://www.kelleydrye.com/News-Events/Publications/Newsletters/Ad-Law-News-and-Views?dlg=1 View the 

Advertising and Privacy Law Resource Center - www.kelleydrye.com/Advertising-and…Resource-Center 

Find all of our links here https://linktr.ee/KelleyDryeAdLaw 

Hosted by Simone Roach 

Produced by Jeff Scurry

The FTC’s Policy Statements, Reports, and Warning Letters- Why Are There So Many?

In a decision with potentially far-reaching implications for the CFPB, a three-judge panel of the U.S. Circuit Court of Appeals for the Fifth Circuit yesterday ruled that the Bureau’s funding structure is unconstitutional.  The case involved a longstanding challenge to the Bureau’s 2017 Payday Lending Rule and marks another significant obstacle for the Bureau two years after the Supreme Court’s decision in Seila Law that its leadership structure violated separation of powers principles.

https://www.adlawaccess.com/2022/10/articles/an-arrow-has-found-its-target-federal-appeals-court-deems-cfpb-funding-method-unconstitutional-invalidating-payday-lending-rule/

Donnelly L. McDowell
Partner
dmcdowell@kelleydrye.com
(202) 342-8645
Bio - www.kelleydrye.com/Our-People/Donnelly-L-McDowell

Caroline T. Schmitz 
cschmitz@kelleydrye.com
(202) 342-8459
Bio - https://www.kelleydrye.com/Our-People/Caroline-T-Schmitz

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our Linktree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach
Produced by Jeff Scurry

“An Arrow Has Found its Target”- Federal Appeals Court Deems CFPB Funding Method Unconstitutional...

Anyone who has strolled the supermarket alcohol aisle in recent months may fairly stand in awe of the proliferation of boozy and not-so-boozy drinks in pretty packages, with small cans and pastel colors making it difficult to immediately discern whether they contain alcohol and, if so, how much.  According to Nielsen data, in 2021, off-premise sales of no- and low-alcoholic beverages were $3.1 billion, up from $291 million the year before, with 30% predicted growth by 2024.  As more low and no-alcohol products come to market, beverage makers will have to navigate the jurisdictional and labeling regulations, which can be tricky, as illustrated by a recently-filed false advertising case involving allegedly boozy kombucha.

https://www.adlawaccess.com/2022/10/articles/beverage-makers-served-a-reminder-by-kombucha-false-advertising-case/

Kristi L. Wolff
kwolff@kelleydrye.com
(202) 342-8805
www.kelleydrye.com/Our-People/Kristi-L-Wolff

Cristina Ferrett
cferretti@kelleydrye.com
(212) 808-5057
https://www.kelleydrye.com/Our-People/Cristina-Ferretti

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our Linktree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach
Produced by Jeff Scurry

Beverage Makers Served A Reminder By Kombucha False Advertising Case

We all know a person that can be unpredictable and erratic. It can be fun to hang out with that person occasionally, because you’ll likely have funny stories to share with your friends the next morning, but you probably wouldn’t want to be married to them, because those same stories are less funny when you share them with your divorce lawyer. The same is probably true with relationships between brands and some celebrities.

In 2013, Adidas entered into a relationship with Kanye West to create Yeezy-branded shoe and clothing collections. Although it was a lucrative relationship, Kanye has said and done some things in the years since then that must have had the brand cringing. After Kanye made a series of anti-Semitic tweets and comments, Adidas decided it had had enough and called its divorce lawyers. The relationship officially ended this week.

https://www.adlawaccess.com/2022/10/articles/morals-clauses-generally-give-companies-the-right-to-terminate-an-agreement-if-a-celebrity-commits-an-act-that-falls-within-the-scope-of-the-clause/

Gonzalo E. Mon
Phone: (202) 342-8576
Email: gmon@kelleydrye.com
Bio: www.kelleydrye.com/Our-People/Gonzalo-E-Mon

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach
Produced by Jeff Scurry

Breaking Up with Celebrities

The FTC has made it a priority to combat fake and misleading reviews. For example, just this year alone, the FTC announced a settlement with a retailer over its failure to post negative reviews, announced a settlement with another retailer over its failure to disclose that reviews were incentivized, partnered with six states to file a lawsuit against a company that allegedly purchased fake reviews, and proposed changes to the Endorsement Guides that would provide more detailed guidance on these practices.

https://www.adlawaccess.com/2022/10/articles/ftc-explores-new-rule-to-combat-fake-reviews/

www.adlawaccess.com/2022/10/article…-of-the-clause/

Gonzalo E. Mon
Phone: (202) 342-8576
Email: gmon@kelleydrye.com
Bio: www.kelleydrye.com/Our-People/Gonzalo-E-Mon

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach
Produced by Jeff Scurry

FTC Explores New Rule to Combat Fake Reviews

In late September, we blogged about a lawsuit that the Chamber of Commerce and other business groups filed against the CFPB, challenging the CFPB’s update to its Supervision and Examinations Manual. As updated, the manual now states that discrimination is an “unfair” practice under the Dodd-Frank Act, and that the agency plans to scrutinize it “across the board in consumer finance,” “including in situations where fair lending laws may not apply.” We noted in our blogpost that the FTC and the State AGs were also sending signals that they planned to challenge discrimination using their unfairness authority.

Well, the FTC just did. On October 18, it announced a settlement with Passport Automotive Group resolving allegations (among other charges) that Passport engaged in an unfair practice when it imposed higher costs on Black and Latino customers than on similarly situated non-Latino White customers. The vote was 4-1, with Commissioner Phillips dissenting and Commissioner Wilson concurring in part and dissenting in part.

https://www.adlawaccess.com/2022/10/articles/update-on-discrimination-and-unfairness-the-ftcs-case-against-passport-automotive-group/

Jessica L. Rich
 jrich@kelleydrye.com 
(202) 342-8580
 Bio - www.kelleydrye.com/Our-People/Jessica-L-Rich

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

Subscribe to the Ad Law News Newsletter - www.kelleydrye.com/News-Events/Pub…and-Views?dlg=1 View the

Advertising and Privacy Law Resource Center - www.kelleydrye.com/Advertising-and…Resource-Center

Find all of our links here linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

Update on Discrimination and Unfairness – The FTC’s Case Against Passport Automotive Group

As we’ve previously reported, the fight against “big tech” remains a high priority for State Attorneys General on both sides of the aisle.  A lot of activity took place over the summer that continues to reinforce the AGs’ broad consumer protection and antitrust powers in this increasingly important area.  As we move into the election season, we thought it a good time to highlight some of the recent developments, as they will no doubt set the trend for 2023.

https://www.adlawaccess.com/2022/10/articles/state-attorneys-general-big-tech-update/

Paul L. Singer 
psinger@kelleydrye.com 
(202) 342-8672 
Bio - www.kelleydrye.com/Our-People/Paul-L-Singer

Beth Chun 
bchun@kelleydrye.com 
(202) 342-8671
 Bio - www.kelleydrye.com/Our-People/Beth-Bolen-Chun

Produced by Jeff Scurry

State Attorneys General - Big Tech Update

Blurred Lines - A Rundown on the FTC Workshop “Protecting Kids from Stealth Advertising in Digital Media”

CPRA Rule Revisions Unlikely to be Finalized in 2022

In a case that will likely resonate with many readers, the FTC’s recent settlement with Vonage describes in excruciating detail the obstacles and costs that Vonage allegedly imposed on consumers when they tried to cancel their phone service.  In many ways, it’s a typical FTC case involving deception, unauthorized charges, and misuse of a “negative option” that makes it simple to sign up and almost impossible to cancel.  However, the FTC’s characterization of the practices as “dark patterns,” coupled with some other features, make this case stand out.  Indeed, any company with a “customer retention strategy” (which is apparently what this was)would be wise to pay attention.

Contact 
Jessica L. Rich
 jrich@kelleydrye.com 
(202) 342-8580
 Bio - www.kelleydrye.com/Our-People/Jessica-L-Rich

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

Subscribe to the Ad Law News Newsletter - www.kelleydrye.com/News-Events/Pub…and-Views?dlg=1 

View the Advertising and Privacy Law Resource Center - www.kelleydrye.com/Advertising-and…Resource-Center

Find all of our links here linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

The FTC’s case against Vonage – Customer Service Nightmare as “Dark Patterns”

The FTC’s Advanced Notice of Proposed Rulemaking (ANPR) seeking comment on a potential rule prohibiting “junk fees” and related practices hit the Federal Register yesterday.  The rule has the potential to fundamentally alter how fees are disclosed in advertising and across the customer experience in nearly every industry that charges some type of fee.  Interested parties now have until January 9 to provide comments and feedback on the proposal.  The ANPR’s publication follows a series of meetings and announcements by the FTC, CFPB, and President Biden that the administration was taking actions to prohibit so-called “junk fees” that “can weaken market competition, raise costs for consumers and businesses, and hit the most vulnerable Americans the hardest.”

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

Subscribe to the Ad Law News Newsletter - www.kelleydrye.com/News-Events/Pub…and-Views?dlg=1

View the Advertising and Privacy Law Resource Center - www.kelleydrye.com/Advertising-and…Resource-Center

Find all of our links here linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

The FTC and CFPB are Coming for “Junk Fees,” but What Does that Really Mean?

NAD announced a decision involving various claims made by Accredited Debt Relief and its marketing agency. Although parts of the decision will likely only be of interest to companies who operate in the debt settlement space, the decision also holds some important lessons for companies that operate outside of that space. We’ll focus on those in this post.

https://www.adlawaccess.com/2022/11/articles/nad-decision-on-debt-claims-holds-lessons-across-all-industries/

Gonzalo E. Mon
Phone: (202) 342-8576
Email: gmon@kelleydrye.com
Bio: www.kelleydrye.com/Our-People/Gonzalo-E-Mon

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

NAD Decision on Debt Claims Holds Lessons Across all Industries

Attorney General Karl Racine announced a new lawsuit against the Washington Commanders, team owner Dan Snyder, the NFL, and NFL Commissioner Roger Goodell for “colluding to deceive DC residents about an investigation into toxic workplace culture and allegations of sexual assault to maintain a strong fanbase and increase profits.”

The lawsuit claims that “for decades, Snyder has cultivated an environment within the Team that glorifies sexual harassment and punishes victims for speaking out.” Throughout the 45-page complaint, the AG details examples of a hostile work environment which, if true, are reprehensible. But why are you reading about a lawsuit that focuses on a hostile work environment on a blog that focuses on advertising law?

The AG argues that DC’s Consumer Protection Procedures Act (or “CPPA”) “establishes an enforceable right to truthful information from merchants about consumer goods and services that are or would be purchased, leased, or received in the District of Columbia,” that the defendants are “merchants” under the law, and that they provide “consumer goods and services” to DC residents. Nothing too surprising there.

Gonzalo E. Mon
Phone: (202) 342-8576
Email: gmon@kelleydrye.com
Bio: www.kelleydrye.com/Our-People/Gonzalo-E-Mon

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

DC Lawsuit Against the Commanders Signals Expansion of Consumer Protection Laws

The World Cup kicked off amidst cheers and chants from the fans who had made their way to Qatar to watch the games. Although most fans chanted in support of their teams, Ecuadorean fans in one section of Al Bayt Stadium had a different message: “Queremos cerveza, queremos cerveza.” They want beer. Sadly for them, there is no beer to be had after the government in Qatar made a last-minute decision to ban sales at all World Cup stadiums.

https://www.adlawaccess.com/2022/11/articles/thirsty-world-cup-fans-serve-up-reminder-about-sponsorship-agreements/

Gonzalo E. Mon
Phone: (202) 342-8576
Email: gmon@kelleydrye.com
Bio: www.kelleydrye.com/Our-People/Gonzalo-E-Mon

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

Thirsty World Cup Fans Serve Up Reminder About Sponsorship Agreements

Multiple state Attorneys General (AGs) and staff from offices nationwide gathered in Washington, DC for the National Association of Attorneys General (NAAG) 2022 Consumer Protection Fall Conference. The conference addressed pressing and relevant consumer protection issues facing attorney general offices. The public portion of the conference included a panel of current and former AGs, who focused their remarks on multistate investigations.

All of participating current and former AGs agreed that multistates would continue to be an important part of their work. AG Brian Frosh (MD) described them as a “force multiplier” for AG offices with limited resources, and AG Doug Peterson (NE) reiterated that they are going to continue to be an important focus nationwide. AG Kwame Raoul (IL) pointed out that multistates have the benefit of multiple perspectives, and may be able to address priorities that may not be on a particular AG’s radar. AG Jonathan Skrmetti (TN) also described multistates as a way to overcome resource asymmetry between states and sees them as capable of making a massive impact on society.

https://www.adlawaccess.com/2022/11/articles/attorneys-general-revisit-the-state-of-multistates/

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

Attorneys General Revisit the State of Multistates

The DC Superior Court dismissed a lawsuit brought by Earth Island Institute against Coca-Cola, alleging that the company falsely represents itself as “a sustainable and environmentally friendly company, despite being one of the largest contributors of plastic pollution in the world.” The court held that many of the challenged statements are aspirational and do not include anything that can be measured to determine whether they are true or false.

https://www.adlawaccess.com/2022/11/articles/coca-cola-scores-second-win-over-green-claims-in-one-month/

Gonzalo E. Mon
 gmon@kelleydrye.com 
(202) 342-8576 
Bio - www.kelleydrye.com/Our-People/Gonzalo-E-Mon

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

Coca-Cola Scores Second Win over Green Claims in One Month

a coalition of 40 attorneys general obtained two multistate settlements with Experian concerning data breaches it experienced in 2012 and 2015 that compromised the personal information of millions of consumers nationwide. The 2012 breach investigation was co-led by the Massachusetts and Illinois AG offices, and the 2015 investigation was co-led by the AGs of Connecticut, DC, Illinois, and Maryland. An additional settlement was reached with T-Mobile in connection with the 2015 Experian breach, which impacted more than 15 million individuals who submitted credit applications with T-Mobile.

https://www.adlawaccess.com/2022/11/articles/ag-settlements-call-for-stronger-data-security/



Paul L. Singer 
psinger@kelleydrye.com 
(202) 342-8672 
Bio - www.kelleydrye.com/Our-People/Paul-L-Singer

Ali Albazzaz  
aalbazzaz@kelleydrye.com.
(312) 857-2619
Bio: https://www.kelleydrye.com/Our-People/Ali-Albazzaz

Beth Chun 
bchun@kelleydrye.com 
(202) 342-8671
 Bio - www.kelleydrye.com/Our-People/Beth-Bolen-Chun

Download the Ad Law Access App www.kelleydrye.com/News-Events/New…ind-Advertising

See our LinkeTree for more information linktr.ee/KelleyDryeAdLaw

Hosted by Simone Roach

Produced by Jeff Scurry

AG Settlements Call for Stronger Data Security

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.

2022

Kelley Drye Ad Law Access Podcast