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Kelley Drye’s Advertising, Marketing and Privacy practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General, the NAD, and the broadcast networks.

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On June 27, 2023, “online marketplaces” (i.e., online selling platforms like Amazon and EBay) will have some brand new obligations.  So will many of the third party sellers that operate on these platforms. 

That’s because, tucked away on pages 2800-2819 of last year’s 4000+ page Omnibus Appropriations Bill (between provisions addressing furniture tip-overs and Tribal swimming pools), is legislation requiring the marketplaces to collect and verify certain information from “high-volume third party sellers,” suspend sellers that fail to comply, and disclose the sellers’ contact information to purchasers.        

The new law (the Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act, or the INFORM Consumers Act) charges the Federal Trade Commission (FTC), the state Attorneys General (AGs), and “other state officials” with enforcement; gives the FTC rulemaking authority; and authorizes substantial civil penalties for violations. The law was the result of a bipartisan effort led by Senators Durbin and Cassidy, as well as Representatives Schakowsky and Bilirakis, who remain invested in its success. (Note that Durbin and Schakowsky both mentioned INFORM at recent Congressional hearings.)     …

Continue Reading New Law Governing Online Platforms And Sellers Takes Effect In June – Are You Ready?

For anyone planning to attending the ABA Antitrust Spring Meeting in Washington DC this week (March 29-31), please look for your friends from Kelley Drye Ad Law on multiple panels on Wednesday and Thursday:

ABBY STEMPSON (Special Counsel in the Ad Law and State AG practices) will be speaking on a panel entitled Fundamentals –…

Just in time for the holidays, the FTC has released two companion settlements resolving allegations that Epic Games (maker of the popular video game Fortnite) violated the Children’s Online Protection Act (COPPA) and the FTC Act, with Epic to pay $520 million in penalties and consumer redress. The cases build on existing FTC law and precedent but add new dimensions that should interest a wide array of companies subject to FTC jurisdiction.    

Notably, the first case alleges COPPA violations (compromising the privacy and safety of users under 13) but adds allegations that Epic violated teens’ privacy and safety, too. And the second case alleges unauthorized in-app purchases – not just by kids, which was the focus of earlier FTC cases, but by users of all ages. Both cases rely on unfairness theories in extending their reach. Both incorporate the (now ever-present) concept of dark patterns (generally defined as practices that subvert or impair user choice). And both got a 4-0 Commission vote, with a strong concurrence from Republican Commissioner Wilson explaining her support for the FTC’s use of unfairness here. Neither case names any individuals.  

The privacy case

The FTC’s privacy case alleges that, for over two years following Fortnite’s launch in 2017, Epic allowed kids to register with no parental involvement, and for kids and teens to play the game with features enabling them to communicate in real time with anyone on the platform. According to the FTC, these practices subjected kids and teens to bullying, harassment, threats, and “toxic” content, including “predators blackmailing extorting, or coercing children and teens…into sharing explicit image or meeting offline for sexual activity.” Further, says the FTC, Epic knew about these problems, resisted fixing them and, when it finally took action, added controls that were hard to find and use, and failed to cure the violations.     …

Continue Reading Two Epic Cases from the FTC: Spotlight on COPPA, Unfairness, Teens, Dark Patterns, In-App Purchases, Cancellations, and More

If you follow our blog, you already know that there have been a number of significant developments in the world of advertising law over the past 12 months. In this post, we highlight ten of those developments and consider what they might mean for the future.

  • Dark Patterns: Any practices that could manipulate or mislead
…

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.”

Prohibiting junk fees may sound uncontroversial in the abstract, but what does it mean in practice?  We concentrate here on the FTC’s ANPR given its potential breadth and impact on a host of industries including travel, delivery services and others in the gig economy, restaurants, and e-commerce sites.

What is a “Junk Fee”?

The ANPR uses the term “junk fees” to refer to “unfair or deceptive fees that are charged for goods or services that have little or no added value to the consumer, including goods or services that consumers would reasonably assume to be included within the overall advertised price.”  According to the FTC, the term includes, but is not limited to “hidden fees,” which are fees disclosed only at a later stage of the customer experience or potentially not at all.…

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

Join us on Thursday for a webinar discussing how to operationalize adtech privacy compliance, and learn about other ways you can stay informed.

Operationalizing Adtech Privacy Compliance: Understanding the IAB Multi-State Privacy Agreement

State privacy laws that go into effect in 2023 will significantly change the digital advertising landscape.  These privacy laws require companies to…

How To Protect Employee/HR Data and Comply with Data Privacy Laws
Wednesday, July 20

As workforces become increasingly mobile and remote work is more the norm, employers face the challenge of balancing the protection of their employees’ personal data and privacy against the need to collect and process personal data to recruit, support and monitor…

We like to occasionally use this space to let you know about upcoming events that you may not have heard about:

June 8

State Attorneys General 101
Please join Kelley Drye State Attorneys General practice Co-Chair Paul Singer, Senior Associate Beth Chun and Abby Stempson, Director of the Center for Consumer Protection, National…

Food + Personal Care Litigation and Regulatory Highlights – January 2022Welcome to our 2022 inaugural issue of Food and Personal Care Litigation and Regulatory Highlights, where we explore trends and developments from around these industries.  It’s fair to say that the year has started off very busy in both the courtroom and the regulatory arena.  On this chilly winter day, our first stop is in California.

Prop 65

Our friends at Kelley Green Law Blog get the starting position for this issue by highlighting a precipitous uptick in the number of Prop 65 filings over the prior year.  While the Covid-19 pandemic caused all sorts of disruptions to society and the economy, at least one area of business has thrived over the last two years:  private plaintiff enforcement of California Proposition 65.  In 2020-2021, over 40% more Prop 65 actions were brought by private plaintiff “bounty hunters” than in the two years prior to the pandemic (2018-2019).  Compared to a decade ago, private plaintiff groups now initiate three times more Prop 65 actions each year, and five times more than in 2008.  Learn more here about the most frequently cited chemicals and those that are emerging, including PFAS.
Continue Reading Food + Personal Care Litigation and Regulatory Highlights – January 2022