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

Kick-Off Time for FTC Rulemaking on Earnings ClaimsLast Thursday (February 10), the FTC announced that it “will vote” at its February 17 open meeting to issue an Advance Notice of Proposed Rulemaking (ANPR) on “deceptive earnings claims for business ventures, gig or other work opportunities, or educational, coaching or training offerings.” Here’s our take on what we can glean from this announcement

FTC Continues to Focus on Incentivized ReviewsPlease join us for a webinar on February 24, 2022 at 4 p.m. on recent and upcoming FTC developments. The webinar will feature Kelley Drye’s Jessica Rich and Aaron Burstein, both former FTC officials, and will be moderated by the newest addition to our privacy team, Jayson Lewis. Here’s a taste of what we’ll be

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

 5 min  PLAY   Senate Spars with FTC BCP Director Sam Levine over FTC Enforcement, Surprisingly from Both SidesYesterday, the Senate Commerce Committee’s Subcommittee on Consumer Protection, Product Safety and Data Security held its second hearing in less than a year on COVID-19 fraud, price gouging, and related enforcement efforts. Groundhog Day Eve was a fitting date for the hearing, as the Federal Trade Commission – this time through Bureau of Consumer Protection

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)

Join Kelley Drye this week for:

Privacy Priorities for 2022: Legal and Tech Developments to Track and Tackle
Wednesday, January 26 at 4:00pm ET/ 1:00pm PT

Privacy compliance is a daunting task, particularly when the legal and tech landscape keeps shifting. Many companies are still updating their privacy compliance programs to address CCPA requirements, FTC warnings on avoiding dark patterns and unauthorized data sharing, and tech platform disclosure, consent, and data sharing changes. But in the not too distant future, new privacy laws in California, Colorado, and Virginia also will go into effect. Addressing these expanded obligations requires budget, prioritizing action items, and keeping up to date on privacy technology innovations that can help make some tasks more scalable.

This joint webinar with Kelley Drye’s Privacy Team and Ketch, a data control and programmatic privacy platform, will highlight key legal and self-regulatory developments to monitor, along with practical considerations for how to tackle these changes over the course of the year. This will be the first in a series of practical privacy webinars by Kelley Drye to help you keep up with key developments, ask questions, and suggest topics that you would like to see covered in greater depth.

Register Here


Continue Reading Upcoming Webinars

FTC Advises Companies to Remediate Log4j VulnerabilityIn an unusual warning to companies running Java applications with Log4j in their environments, the Federal Trade Commission (FTC) recently cautioned that it “intends to use its full legal authority to pursue companies that fail to take reasonable steps to protect consumer data from exposure as a result of Log4j[] or similar known vulnerabilities in

The FTC’s Magnuson-Moss Rulemaking Process – Still an Uphill ClimbWe’ve been hearing a lot lately about the FTC’s rulemaking procedures under Section 18 of the FTC Act (also known as “Mag-Moss” rulemaking). Long decried as too burdensome and difficult to use on a regular basis, this tool is now being celebrated for its enormous, untapped potential to establish industry-wide standards and enable the FTC to get monetary relief in its cases, post-AMG. (AMG didn’t affect the FTC authority to obtain monetary relief when it’s enforcing a rule.)

Is the old view or the new one correct? Is Mag-Moss rulemaking really so cumbersome, as many FTC staff and observers have long claimed? Have those burdens been overstated, warranting the enthusiasm we’re now seeing among FTC Commissioners, consumer groups, and Congress? Did the FTC’s changes to its internal rules last July (see below) really “streamline” the process as the FTC claimed?

As suggested by the title to this blogpost, I have an opinion: Mag-Moss is still an uphill climb. However, to enable readers to decide for themselves, I detail below the Mag-Moss process as laid out in the law. Although the FTC’s July changes stripped away some extra steps it had previously imposed under its rules, the hurdles in the law remain formidable. 
Continue Reading The FTC’s Magnuson-Moss Rulemaking Process – Still an Uphill Climb