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.

For more information, visit:

Advertising and Privacy Law Resource Center

Ad Law Access Podcast

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

UK’s ASA Roasts Oatly’s Climate-Friendly ClaimsIf you’re among the over 40% of U.S. consumers who vowed to change how you eat in the new year, fitting into pants that don’t have elastic waistbands may be one of numerous motivators.  For many consumers, climate considerations are increasingly among the dietary priorities, and 2022 looks likely to bring plates filled with climate-friendly

Dark Patterns: A New Legal Standard or Just a Catchy Name? (Part Two)In Part One of this discussion, we provided background on the concept of dark patterns and analyzed some recent examples from State AG enforcement. We concluded that, in alleging dark patterns, State AGs are building primarily on existing precedent governing deception and unfairness but also are trying to push the envelope. Whereas earlier precedent mostly

Dark Patterns- A New Legal Standard or Just a Catchy Name? (Part One)State and federal regulators have definitely put a new emphasis on combatting so-called “dark patterns” – a term attributed in 2010 to user-experience expert Harry Brignull, who runs the website darkpatterns.org. Consider some of the actions of 2021: In April, the FTC hosted a workshop dedicated to dark patterns. In July, Colorado passed the Colorado Privacy Act that specifically defines and prohibits the use of dark patterns.  In October, the FTC issued a policy statement warning against the use of dark patterns in subscription services.  And just last week, a bipartisan group of four states sued Google alleging in part violations of state law for Google’s use of dark patterns in obtaining consumers’ consent to collect geolocation information.  But other than a catchy name, is there really anything new about the types of conduct that state and federal officials are calling illegal?  This two-part blogpost will take a closer look at that question.

What are “Dark Patterns?”

There are a number of definitions of “dark patterns” that are bandied about.  Darkpatterns.org calls them, “tricks used in websites and apps that make you do things that you didn’t mean to, like buying or signing up for something.”  In the Colorado Privacy Act, dark patterns are defined as, “a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice.”  And in the recent Google lawsuits, each State defined dark patterns as, “deceptive design choices that take advantage of behavioral tendencies to manipulate users to make choices for the designer’s benefit and to the user’s detriment.”
Continue Reading Dark Patterns: A New Legal Standard or Just a Catchy Name? (Part One)

Targeted Advertising in the Crosshairs: New Bill Seeks to Ban Many Forms of Targeted AdvertisingBackground

On Tuesday, Congressional Democrats unveiled a new bill to outlaw a wide swath of targeted advertising.  The Banning Surveillance Advertising Act would prohibit ad tech companies from using consumers’ personal information to target ads, with limited exceptions. It also would prohibit advertisers from using third party data, or data about a person’s membership in a protected class, to target ads.  The bill would authorize the FTC, state attorneys general, and private litigants to enforce the law, and the FTC to write rules implementing it.

The effort, led by Senator Cory Booker (D-NJ) and Congresswomen Anna Eshoo (D-CA) and Jan Schakowsky (D-IL), arrives at a time of unprecedented regulatory developments impacting the ad tech industry – most notably, the enactment of new state privacy laws in California, Virginia, and Colorado with provisions regulating the industry. While these privacy laws have focused on giving consumers the opportunity to make choices about data sharing for purposes of targeted advertising, the Banning Surveillance Advertising Act would place blanket prohibitions on such advertising. As we describe here, the FTC has also announced that it is developing a rule targeting “surveillance-based business models,” though the contours of that rule are still unknown.

In a press release, Senator Booker explained his view that “surveillance advertising is a predatory and invasive practice.  The hoarding of people’s personal data not only abuses privacy, but also drives the spread of misinformation, domestic extremism, racial division, and violence.”  Echoing Booker, Rep. Eshoo said that the practice “fuels disinformation, discrimination, voter suppression, privacy abuses, and so many other harms.” Rep. Schakowsky, who chairs the House Energy and Commerce Consumer Protection Subcommittee, said the practice “exacerbates manipulation, discrimination, misinformation, and extremism.”

Given the dramatic changes that the bill would impose on the marketplace, it is not surprising that industry groups have already criticized it forcefully.  In a press release today, IAB stated that the bill would “disenfranchise businesses that advertise on the Internet, and hundreds of millions of Americans who use it every day to find exactly what they need, quickly,” and that it could “eliminate the commercial internet almost entirely.”
Continue Reading Targeted Advertising in the Crosshairs: New Bill Seeks to Ban Many Forms of Targeted Advertising

As supply chain woes continue, late last week several District Attorneys on behalf of the State of California filed a lawsuit against Kanye West’s apparel brand, Yeezy, alleging that the Yeezy companies violated state law because they failed to ship items within thirty days and failed to provide adequate delay notices, or provide an offer

Jessica L. Rich and Laura Riposo VanDruff, Two Former Senior FTC Officials Further Bolstering Kelley Drye’s Privacy and Advertising PracticesWe are thrilled that Jessica Rich and Laura Riposo VanDruff have joined the firm’s Privacy and Advertising practice groups. Both attorneys are former top officials at the Federal Trade Commission (FTC), with Rich having served as Director of the Bureau of Consumer Protection (BCP) and VanDruff as an Assistant Director in BCP’s Division of Privacy