This week, NAD released five tips on influencer marketing. Here are the tips, followed by some of our own observations.

1. When working with influencers or incentivizing consumers to review your product, you may be responsible for the content of their posts.

As we’ve noted in the past, if you work with an influencer or provide incentives to consumers in exchange for reviews, you could be held liable for what the influencers (or consumers) do or don’t do. More on that below.

2. Tell influencers or consumers to disclose their material connection with you and monitor them to make sure they do.

We’ve covered this topic in various posts. By now, you should know that it’s important to tell influencers and consumers about their disclosure requirements. Your responsibilities don’t stop there, though. You also need to make sure that influencers and consumers comply with these requirements. The most recent FTC settlement goes into more detail on monitoring.

3. Disclosures should be in plain, easily understandable language.

Although you have some flexibility in what disclosures are used, keep in mind that jargon or abbreviations that typical consumers may not understand are not enough. Also, keep in mind that that although hashtags like #ad are popular, a plain-English disclosure – such as “thanks to Brand for sending me this product to try” – work, too.

4. Make sure the disclosure is readable or audible at the same time as the endorsement message.

As the most recent FTC settlement demonstrates, the disclosures should appear at the outset of the post and should be visible without consumers having to click on anything. And a recent NAD decision illustrates that it’s important to make sure that the disclosure will “travel” with the endorsement if it’s shared on a different platform.

5. When interacting with influencers or consumers reviewing your product, make sure you are not conveying a misleading message.

Remember that you could be held responsible for any claims made by influencers or consumers, even if you didn’t approve them. Consider providing guidelines to help stay away from problematic claims.

You should also think carefully about how you interact with reviews, even if you didn’t incentivize them. NAD writes that if consumers post reviews with claims that you can’t support, you should be careful not to interact with those reviews in a way that suggests you agree with the claims. Instead, consider removing reviews that make unsubstantiated claims, if they appear on your platforms.

Prospects Rise for Antitrust and Data LegislationDisplaying bipartisanship seldom seen on Capitol Hill, the Antitrust Subcommittee of the House Judiciary Committee held a hearing yesterday on Reviving Competition in which Democrats and Republicans appeared to agree on crucial issues.[1] Subcommittee Chairman David Cicilline and Ranking Member Ken Buck echoed one another on the need for reforms, while many members of the full Judiciary Committee, including Chairman Nadler and Ranking Member Jordan, weighed in with their own support for writing new laws on Big Tech.

Virtually unanimous was the sentiment to increase funding for the Federal Trade Commission and the Antitrust Division at the Department of Justice. So was the desire to accelerate antitrust litigation and the idea of easing the burden on the government to stop mergers. Consensus seemed close as well on making data more portable for consumers who switch vendors and products and on improving the interoperability of apps and devices. Proposals to create a new federal agency to regulate Big Data met with less favor, and arguments to break up large firms did not capture the day. The Commission emerged as the agency most likely to see an expansion of authority.

The hearing was the first of a series planned to develop legislation based on the extensive investigation of competition in Big Tech that the subcommittee had conducted in the last Congress. Chairman Cicilline opened with a warning that dominant companies have too much power and it needs to be curbed. “Mark my words, change is coming. Laws are coming.” He cited dominant firms’ acquisitions of nascent competitors, contractual conditions that platforms impose on other vendors, disadvantaged news media, and measures that other countries have taken to rein in the companies. Perhaps most importantly, he concluded by noting the agreement of Ranking Member Buck on many of the proposals.

For his part, Mr. Buck recounted examples of conduct attributed to Big Tech during the investigation last year, including allegations of collusion, unfair competition against vendors on platforms, markups added to competitors’ products and actions to silence political speech. He then expanded on the remedies he proposed. First, he advocated data portability and recalled that one of the most popular laws Congress ever passed was the Telecommunications Act of 1996, which allowed consumers to keep their phone numbers when they switched carriers. Second, he extolled interoperability – allowing “competing technologies to speak to one another” – so consumers are not locked into one choice. Third, he supported more robust enforcement of the antitrust laws, although he cautioned against a Glass-Steagall Act for the internet (referring to proposals to prevent platforms from competing with vendors on them).

Witnesses representing a cross section of the political spectrum offered testimony ranging from a defense of modern antitrust doctrine to a proposal that Congress create a regulator like the bodies that once controlled railroad and telecom. The majority of the Committee was clearly between maintaining the status quo and replacing antitrust enforcement. Ranking Member Buck said, “the key is to make sure that we do not take a chainsaw to the whole economy, but rather we should implement a scalpel-like approach for Big Tech.” The odds of some sort of surgery loom large.


Both the Chairman and the Ranking member issued reports in late 2020. The Majority Staff Report, Investigation of Competition in Digital Markets,[2] summarized more than a year of investigation that spanned seven hearings and amassed 1.3 million documents, “the most significant congressional antitrust investigation in more than a generation,” said Chairman Nadler at yesterday’s hearing. In over 400 pages the Report reviewed market structure, entry conditions, innovation, privacy, press, and economic liberty in light of modern technology and the large firms that have become identified as its leaders. Although focused on Big Tech, the recommendations could affect competition and consumer protection throughout the economy. The Staff Report advocated measures such as these:

a. Restoring Competition in the Digital Economy

  • Structural separations and prohibitions of certain dominant platforms from operating in adjacent lines of business;
  • Nondiscrimination requirements, prohibiting dominant platforms from engaging in self-preferencing, and requiring them to offer equal terms for equal products and services;
  • Interoperability and data portability, requiring dominant platforms to make their services compatible with various networks and to make content and information easily portable between them;
  • Presumptive prohibition against future mergers and acquisitions by the dominant platforms;
  • Prohibitions on abuses of superior bargaining power [and] due process protections for individuals and businesses dependent on the dominant platforms.

b.  Strengthening the Antitrust Laws

  • Strengthening Section 7 of the Clayton Act, including through restoring presumptions and bright-line rules, restoring the incipiency standard and protecting nascent competitors, and strengthening the law on vertical mergers;
  • Strengthening Section 2 of the Sherman Act, including by introducing a prohibition on abuse of dominance and clarifying prohibitions on monopoly leveraging, predatory pricing, denial of essential facilities, refusals to deal, tying, and anticompetitive self-preferencing and product design; and
  • Taking additional measures to strengthen overall enforcement, including through overriding problematic precedents in the case law.

c.  Reviving Antitrust Enforcement

  • Restoring the federal antitrust agencies to full strength, by triggering civil penalties and other relief for “unfair methods of competition” rules, requiring the Federal Trade Commission to engage in regular data collection on concentration…; and
  • Strengthening private enforcement through elimination of obstacles such as forced arbitration clauses, limits on class action formation, judicially created standards constraining what constitutes an antitrust injury, and unduly high pleading standards.

Committee staff reports and recommendations are at best long shots to legislation, especially in a Congress as divided as the 117th. The odds of action here got an immediate boost, however, when Mr. Buck issued a report, The Third Way,[3] in which minority members endorsed some of the recommendations. Among the areas of agreement, the Report cited these:

  • More Resources for Antitrust Agencies – The report makes a good case for the need to strengthen our nation’s antitrust agencies with regard to resources.
  • Data Portability – Conservatives should consider supporting very limited legislative changes to provide consumers with a data portability standard that is similar to transferring cell phone numbers, as mentioned above. However, the language must be exact to prevent regulators from stretching Congressional intent to regulate Internet data companies as public utilities under Title II of the Communications Act of 1934, similar to net neutrality.
  • Reforming the Burden of Proof in Merger Cases – The evidentiary burden of proof that antitrust agencies must meet in many merger cases has become insurmountable. As a result, our nation’s antitrust enforcement agencies have built a wall, making it nearly impossible to bring an enforcement case on potential competition grounds in digital markets, granting near-total immunity for Big Tech. …. Congress should reaffirm to the antitrust enforcement agencies that the standard given to the agencies by Congress under the Clayton Act Section 7 allows them to challenge a merger when “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” The standard does not specify price change as our enforcers’ only way to review cases where harms to innovation and potential competition exist, and neither does it raise the evidentiary bar on potential completion versus actual competition. In other words, the antitrust agencies raised the bar on themselves, with help from the courts, in the years since Congress adopted the Clayton Act.

In The Third Way, the minority members stopped short of endorsing reform of monopolization laws and their proscriptions of unilateral conduct:

However, instead of issuing new bright line rules and creating a large regulatory framework to govern these behaviors,
we believe the solution is to offer a thoughtful plan that ensures our nation’s antitrust enforcers are following Congress’
original intent regarding the burden of proof needed to bring and win cases involving these theories of harm.

Among the issues that warranted further review, according to the minority members, were proposals to change the laws on monopoly leveraging, predatory pricing, the essential facilities doctrine, exclusionary product improvement, and the Supreme Court’s decision in Ohio v. American Express (which required proof of competitive effects on both sides – buyers and sellers – of a charge-card platform). The minority members expressed serious skepticism about proposals to resurrect the case law of the 1960s that had established strong market-share presumptions in merger cases, and proposals to prohibit acquisitions altogether when companies reach certain share thresholds.

The agreements and disagreements in last year’s reports were on display in yesterday’s hearing. The agreements could well signal the most significant changes to antitrust laws in decades. Whether the majority and minority can come together on the open issues remains less likely.

[1] Hearing video available at

[2] Available at

[3] Joined by Doug Collins, Matt Goetz and Andy Biggs, Available at

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The Children’s Advertising Review Unit (or “CARU”) has guidelines that apply to ads directed to children who are under 12 years old. A lot has changed since the guidelines were last updated in 2006, and CARU recently announced that it’s working on an update. At ACI’s Advertising Claims Substantiation Forum this month, I asked Angela Tiffin about the update, and she previewed some of the upcoming changes. Here are three:

  • The current guidelines are very TV-centric. The updated guidelines will focus more on digital marketing and provide tips to determine whether online ads are directed to children.
  • CARU will update their endorsement guidelines. Using the FTC’s Endorsement Guides as the “bare minimum,” CARU will ask advertisers to take extra care when advertising to children.
  • CARU will address “dark patterns.” For example, advertisers will be required to clearly disclose when children need to view an ad in order to receive an advertised benefit.

CARU hopes to have the guidelines ready by the end of the year.

Separately, in a recent blog post, CARU encouraged advertisers to focus on diversity and inclusion in ads that are directed to children. They should go beyond legal requirements and strive “to implement diversity and inclusion at every level in their ecosystems and in all ways that diversity and inclusion can be represented.” It will be interesting to see whether future decisions address this goal.

Ad Law Access Blog - the State of Maryland enacted legislation imposing the Digital Advertising Gross Revenues TaxOn February 12, 2021, the General Assembly of the State of Maryland enacted legislation imposing the Digital Advertising Gross Revenues Tax, overriding a prior veto of the legislation by Maryland Governor Larry Hogan. The Act imposes a tax, at rates of up to 10%, on gross revenues “derived from digital advertising services in the state.”  The tax could be extremely burdensome, and within days of the Act’s enactment, a number of advertising industry groups commenced litigation, in an effort to block implementation of the Act.

Our colleague Andrew Lee breaks down what you need to know about this first-of-its-kind tax here.

Ad Law Access Blog - to the Ad Law Access blog for more updates on advertising and consumer protection trends and developments from the Advertising Law and Privacy Law practices

Ad Law Access PodcastOften when people think about the Consumer Financial Protection Bureau (CFPB) they say to themselves, “well, I’m not a bank so that doesn’t really apply to me.” But consumer financial protection laws are actually much broader and cover all aspects of consumer financial products, any way that consumers bank, pay, or finance transactions and the financial technology sector more broadly.

On this episode of the Ad Law Access Podcast, partner Alysa Hutnik and special counsel Donnelly McDowell discuss consumer financial protection, fintech, financial services, and the consumer protection issues that the CFPB and FTC have broad discretion over.

Listen on AppleSpotifyGoogle Podcasts,  Soundcloud, via your smart speaker, or wherever you get your podcasts.

For more information on consumer financial protection and other topics, visit:

Welcome to our monthly digest of litigation and regulatory highlights impacting the food and beverage industry.  As it has been for many months, the story was mostly about what’s going on in the food court.  Let’s take a look….


Vanilla, vanilla, and more vanilla….The plaintiff’s bar remains skeptical of any product labeled as vanilla.  Among the many vanilla-related lawsuits filed, McDonald’s, Whole Foods and Trader Joe’s defended suits alleging that their vanilla ice cream, vanilla almond milk, and vanilla almond cereal respectively were falsely labeled as vanilla.  However, in a win for industry, a NY federal judge found that Topco did not improperly label its vanilla almond milk, ruling that although the product is not exclusively flavored with real vanilla, the suit failed to allege that a reasonable consumer would believe that a vanilla milk’s flavor was solely sourced from vanilla.

Other flavorings haven’t been immune from scrutiny, though.  Frito-Lay appears to have settled a case involving allegations that the company’s cheddar and sour cream chips are misleadingly labeled.  The plaintiff alleged that the images of cheddar cheese and sour cream on the front of Ruffles-brand and Baked Lays Cheddar + Sour Cream Flavor potato chips, reasonable buyers would think that those ingredients flavor the chips.  In fact, plantiff claimed that Frito Lay used synthetic diacetyl to provide the sour cream flavor in the chips, but did not disclose the artificial flavor on the front of the packaging, as required per the FDCA regulations.

Consumers were also dismayed to find out that 7-Eleven’s Yumions may not, in fact, be made from real onions and, separately, that the Keebler elves allegedly may not be making their cookies with “real fudge”.

The lesson from these cases and others is that flavor and ingredient-related representations continue to face considerable scrutiny.  If businesses are updating labels or branding for the new year, it’s worth the time to review flavor descriptions and consider the arguments that these plaintiffs are asserting to help understand and assess risk.

(links from Law360, subscription req’d.)


FDA warning letters focused on claims that cause products to be considered unapproved new drugs, including claims featured on an aloe product relating to joint mobility, inflammation, and acid reflux.  In other enforcement, a Washington-state federal judge entered a consent decree against a juice processor accused of distributing adulterated juice products.

FDA published findings of its leafy greens e. coli outbreak investigation, identifying cattle grazing upslope from the growing area as the likely source of contamination.

In a recall turned class action litigation story, Midwestern Pet Foods, Inc., initiated a recall of multiple pet foods on December 30, related to the presence of aflatoxin.  Consumers whose pets perished after consuming the food recently filed suit alleging that the foods caused their pets’ deaths.

Undeclared allergens and potential presence of listeria monocytogenes and other contaminants were the most common reasons for food recall listed in FDA’s recall database.

Prop 65

Our sister blog, Kelley Green Law, featured two Prop 65 developments that may impact certain products, including Prop 65 warnings required on products that may expose consumers to THC and a proposal to minimize use of the short form warning format.  Also, although not directly in the personal care space, given the proliferation of many products that feature disinfectant claims, companies may want to note this post regarding EPA enforcement on unregistered disinfectants.


The FTC did not announce any food-specific settlements or litigation in January 2021.


NAD did not issue any food-specific decisions in January 2021, but see select dietary supplement highlights here.

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Thanks for reading our first installation of the food industry litigation and regulatory highlights.  See you in March!

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Welcome to our monthly roundup of regulatory and litigation highlights impacting the dietary supplement and personal care products industries.


NAD tackled substantiation for “#1 Dermatologist Recommended” claims in a challenge involving L’Oreal’s CeraVe moisturizer and use of syndicated survey data to support related claims.

Health claim substantiation was front and center in a Council for Responsible Nutrition-led challenge involving glutathione and the level of evidence required to support claims relating to low-glutathione levels.


Indirectly related to dietary supplements and consumer care, the FTC announced a settlement with app-maker Flo regarding allegations that the company shared the health information of users with outside data analytics providers after promising that such information would be kept private.

As we noted here, the FTC has new civil penalty authority relative to false COVID-related advertising claims and practices.


As it has since relaxing the regulatory standards relative to manufacturing of hand sanitizers in March 2020, FDA continued issuing warning letters related to hand sanitizer products that contain active ingredients other than those allowed per the hand sanitizer tentative final monograph, primarily methanol, and relative to hand sanitizers that are allegedly sub-potent.

The agency also continued its enforcement relative to COVID-related claims with warning letters issued to AusarHerbs and Allimax US (joint warning letter with the FTC), as well as non-COVID-related letters to companies whose products featured claims relating to joint health, hair loss, and inflammation, which caused the products to be considered unapproved new drugs.  The letters rely heavily on evidence from social media posts, blog posts, and product websites.

Prop 65

Our sister blog, Kelley Green Law, featured two Prop 65 developments that may impact certain products, including Prop 65 warnings required on products that may expose consumers to THC and a proposal to minimize use of the short form warning format.  Also, although not directly in the personal care space, given the proliferation of many products that feature disinfectant claims, companies may want to note this post regarding EPA enforcement on unregistered disinfectants.

Class Action Litigation

In a significant win for the dietary supplement industry, the Ninth Circuit Court of Appeals upheld the Northern District of California’s grant of summary judgment to Target Corp., ruling that state law false advertising challenges to permissible structure/function claims are preempted by the Federal Food, Drug and Cosmetic Act.  See our blog post discussing the case here.

Other highlights from courtrooms around the country include…

Southern California skincare company Yes To Inc. agreed to pay $775,000 to a proposed class of consumers to resolve allegations it misrepresented the dangers of its Grapefruit Vitamin C Glow-Boosting Unicorn Paper Mask, which was recalled after a flood of consumers reported facial skin irritation and burning. (Law360 subs. req’d.)

A California federal judge has thrown out for the last time a proposed class action alleging that Johnson & Johnson Consumer Inc. and Bausch Health US LLC misled customers about the safety of their talc products, saying even after five chances to amend the complaint, the pleadings still fall short.  (Law360 subs. req’d.)

Skincare company Murad LLC was hit with a proposed class action claiming the company deceived buyers by wrongly representing its moisturizer as “oil-free” when the product actually contains oils.  (Law360 subs. req’d.)

A woman suing Charlotte’s Web Holdings Inc. argued that the CBD company shouldn’t be able to pause or escape her proposed class action over its labeling of products as dietary supplements, saying that identifying them as such violates state and federal laws. (Law360 subs. req’d.)  There are several cases involving this issue.  See a recent post on this issue on Cannabis Law Update.

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Thanks for reading our first installation of the dietary supplement and personal care monthly highlights.  See you in March!

Advertising and Privacy Law Resource Center

In the days leading up to the Super Bowl, Penn State Football tweeted a graphic claiming that “a Penn Stater has appeared in every Super Bowl.” Below that bold claim, in much smaller letters, appeared an important qualifier: “Except for five since 1967.”

Competitors were quick to flag the claim, and many touted their own successes in a similar manner. For example, Ole Miss Football tweeted that “an Ole Miss Rebel has won every Super Bowl,” but added its own fine-print qualifier: “Except for the ones they didn’t.”

The Nittany Lions took the jokes in stride, and later tweeted an updated graphic with a clearer disclosure, noting that “no magnifying glass [was] needed for this one.” No harm, no foul.

Had Penn State’s tweet been an advertisement, this case could have turned out differently. Companies can face legal consequences for making exaggerated claims in ads, and fine print disclosures are unlikely to save them.

Laugh now, and feel free to create your own memes. But when you go back to drafting ad copy, remember the wise words of Lesley Fair: “What the headline giveth, the footnote cannot taketh away.”

One of the few areas of EPA policy continuity between the Biden and Trump eras is the aggressive enforcement attention being paid to products that claim to fight the SARS-CoV-2 coronavirus.

While EPA has long prioritized enforcement of the rules governing antimicrobial products (disinfectants and the like), the current pandemic has elevated that focus substantially, particularly against products that claim or suggest effectiveness in fighting coronavirus and other microbes. Some of the more high-profile actions over the last year have targeted on-line sales of products (often imports) that are not registered with EPA to make antimicrobial claims, as required by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA).

In a January 2021 update to a COVID-related compliance advisory first issued in May 2020, EPA reiterated its aggressive enforcement stance, with an emphasis on internet product sales:

“EPA is receiving a steady stream of tips/complaints concerning potentially false or misleading claims, including efficacy claims, associated with pesticides and devices. These tips and complaints are being actively reviewed and efforts are being made to identify violative products. EPA intends to pursue enforcement against products making false and misleading claims regarding their efficacy against the coronavirus. EPA is particularly concerned with pesticide and pesticide device products sold online on e-commerce platforms that are fraudulent, counterfeit, and/or otherwise ineffective. EPA is also coordinating with the U.S. Department of Justice, U.S. Customs and Border Protection, and other federal partners to bring the full force of the law against those selling or otherwise distributing violative products.”

The updated EPA advisory also highlights agency concerns with products improperly claiming long-lasting anti-viral effects (so-called “residual claims” that a product “provides an ongoing antimicrobial effect beyond the initial time of application, ranging from days to weeks to months”). Such claims only are allowed if approved by EPA and “supported by acceptable studies demonstrating satisfactory residual efficacy,” consistent with agency guidance issued in October 2020.

EPA’s updated advisory also expands on, and somewhat shifts, the agency’s discussion of pesticide “devices” (e.g., UV lights, ozone generators, and other instruments that use physical or mechanical means to control pests, including viruses and other germs) that claim to kill the coronavirus. Unlike chemical pesticides, devices are not required to be registered by EPA and, therefore, are not scrutinized by the agency to ensure they are safe to use or work as intended. [Note that devices must meet other EPA requirements, including being labeled with an “EPA Establishment Number” to identify the facility at which the device was produced, and not being marketed with “false or misleading” claims.] While EPA does not review efficacy data for these products, manufacturers must have on file adequate substantiation for the claims they make. Interestingly, the May 2020 advisory noted that “devices may not be able to make claims against coronavirus where devices have not been tested for efficacy or safety for use against the virus causing COVID-19 or harder-to-kill viruses.” This language has been replaced in the January 2021 advisory with a more general reminder that

“[M]aking false or misleading labeling claims about the safety or efficacy of a pesticidal devices is prohibited and could result in the issuance of a Stop Sale, Use, or Removal Order and penalties ….”

In addition, on the litigation front, EPA continues to fight two novel challenges to the scope of the agency’s enforcement authority. In the first case (Zuru LLC v. EPA), filed in September, the company is challenging EPA’s determination that its cleaning wipes are an unregistered pesticide, and blocking its importation, because the wipes contain an active ingredient found in a number of other EPA-registered disinfectants; of website statements made by third party resellers that the wipes are “disinfectants” and “kill germs”; and the product name “‘Bactive’ implies bacterial fighting properties.”

The second case, Tzumi Innovations v. EPA, filed in December, similarly involves objections to EPA’s designation of the company’s hand wipes (typically for use on the human body and an FDA-regulated product) as an unregistered pesticide and a threatened Stop Sale, Use, Or Removal Order (SSURO). EPA filed a new brief in that case on February 3 asserting that the matter is not ripe for review and, substantively, that the wipes are properly considered pesticides because they are being marketed for use on surfaces.

Both challenges provide a reminder of the extensive scope of EPA’s FIFRA authority, including over products that do not explicitly make antimicrobial claims, but imply such effectiveness through other statements or based on the presence of certain active ingredients. For a more detailed discussion, see my prior blog post.

A copy of EPA’s updated COVID Compliance Advisory “What You Need to Know Regarding Products Making Claims to Kill the Coronavirus Causing COVID-19″ is available here.

Two articles from the weekend perusal of the Washington Post are worthy of mention here.  First, it seems that pandemic eyebrows are driving us all crazy.  I don’t have an answer for that problem other than to acknowledge that the struggle is real and none of us stands alone.

Pandemic Eyebrows

Second, and possibly more importantly, WaPo reported that there has been an uptick in consumer complaints relating to companies charging hidden covid fees to cover the costs of personal protective equipment, enhanced cleaning, etc.  The article states as follows:

“According to a survey by The Washington Post of attorney general offices and financial departments in 52 states and territories, U.S. consumers in 29 states have filed 510 complaints of coronavirus-related surcharges at dentist offices, senior living facilities, hair salons and restaurants.”

The article includes discussion of several facilities of the types listed above and fee-related complaints and conundrums.

As the readers of this blog know, customer complaints can contribute to regulatory scrutiny of individual businesses or business practices.  Fees relating to safety equipment and cleaning may be allowed in many contexts, but they must be disclosed.  Failure to disclose may run afoul of federal and state consumer protection laws.  Put another way, there’s no shame in hiding your covid brows, but don’t try to hide covid fees.


For additional information on COVID-19 issues, visit our COVID-19 Response Resource Center. For advertising, privacy, and consumer protection issues, visit the Advertising and Privacy Law Resource Center and subscribe to the Ad Law Access podcast and blog.