Nine Things You Should Know About the New FTC Rulemaking on Privacy and Targeted Advertising

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Earlier this week, the Federal Trade Commission (FTC) announced that it was initiating a rulemaking to “crack down on harmful commercial surveillance and lax data security.” More specifically, the agency issued an Advance Notice of Proposed Rulemaking (ANPR) on Commercial Surveillance and Data Security and announced a related workshop on the topic. This rulemaking will be conducted pursuant to the FTC’s organic rulemaking process, which is known as Mag-Moss rulemaking. There is quite a lot to digest about this new undertaking, and here are nine things you should know at the outset.

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Straight Talk from NAD: Recent Case Outlines when Comparative Claims Must Be Qualified 

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Sometimes advertising lawyers can be real drama royals. But I do think the latest in the teeth-straightening wars at NAD deserves some attention. I am not yet sure if this signals a new direction for NAD or if this case will be more limited to cases with comparative savings messages. But its recommendation goes beyond what I would have expected.

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NAD Cleans Up ‘Doctor Recommended’ Claim for Baby Wipes

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It is too early to tell if we have a baby wipes war developing to compete with the diapers wars, but we certainly have had lots of activity this year involving the disposable cleanup cloths. An earlier action focused on the adequacy of the substantiation of a claim that WaterWipes were the “#1 wipe against the causes of diaper rash.” Do not fear, gentle reader, we will not be delving into the science behind diaper rash today (although for the curious, the earlier decision and the more recent decision both have detailed discussions of the BaSICs, or Baby Skin Integrity Comparison Survey, including its adequacy as competent and reliable scientific evidence and its fit to the claims made).

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Advertising and Regulation of CBD Products

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If you have been to any kind of spa, beauty supply store or health food store in the past four years, chances are you have seen, if not purchased, a product with cannabidiol (CBD). The 2018 passage of the Farm Bill removed hemp-deprived products, like CBD, from the Controlled Substances Act, leading to a flood of CBD products to the consumer marketplace that boast a wide variety of health and beauty claims, from relieved pain to lessened anxiety, among many others.

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$62 Million Is Something to Write Home About – the Opendoor Case

A recent Federal Trade Commission (FTC) lawsuit and settlement with Opendoor Labs Inc. (Opendoor) is a must-read even if you are not in the real estate business. But if you don’t want to actually read it, we’ve got you covered. The case raises a range of issues regarding how savings claims are made to consumers and provides some insights on when representations may cross the proverbial line into deception. For most consumers, selling a home is the most significant commercial transaction they’ll make, and the FTC action challenges a range of different representations being made during the process.

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3 Things to Address in Digital Media Agreements

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The ad creative has been produced and approved. The media plan has been crafted. Now it’s time to execute on the plan, and that involves buying the media – i.e., purchasing ad space to place your ads on different media channels (television, print, websites, etc.) so people can see them. Or maybe you’re a publisher looking to monetize your available ad space by selling it to advertisers. Either way, you may be wondering what issues you should be covering in those media agreements. Even if you rely on an agency to do the heavy lifting here, you’ll still want to understand what issues should be addressed. Listed below are three things you should be tackling in those agreements. Although this post focuses primarily on digital online media, such as websites, many of these concepts and takeaways could apply to traditional forms of media as well, such as traditional print media, outdoor billboards, and broadcast radio or television.      

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Not Every Payment Processing Case Is the Same – the Latest FTC Case Provides Some Helpful Reminders

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Most of the Federal Trade Commission’s (FTC) law enforcement actions involving payment processors have exclusively focused on allegations that processors did not do sufficient due diligence before onboarding questionable merchants. The latest payment processing case, however, has a bit of a novel twist and focuses instead on alleged deceptions aimed at the merchants that were using the defendant processor. Indeed, the case is a bit of a surprise, much like how I felt the other morning when I remembered that Renaissance had finally dropped. It (the case, not Renaissance) also provides some helpful reminders about three areas of interest to the FTC – small businesses, online disclosures and marketing in different languages.

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FTC and DOJ MOUs with NLRB Reflect the Administration’s Ongoing Focus on Restrictive Labor Relationships and the Gig Economy

Last week, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) announced that the agencies had entered into a new Memorandum of Understanding (MOU). The FTC press release touted the MOU as a big deal, stating that it would “bolster the FTC’s efforts to protect workers by promoting competitive U.S. labor markets and putting an end to unfair practices that harm workers.” The NLRB Press Release was a bit less definitive, describing it as “a partnership between the agencies that will promote fair competition and advance workers’ rights.” And this week, the Department of Justice (DOJ) Antitrust Division announced its own MOU with the NLRB.

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What Even Is Ad Tech?

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“What is ad tech?” That is a question I’ve been asked and have answered numerous times. I recently joined BakerHostetler’s Chicago office in the Digital Assets and Data Management Practice Group after spending almost eight years at Publicis Groupe, where I led a team of attorneys supporting business units focused on media, data and advertising technology (“ad tech”). As part of this transition, I’ve had the opportunity to meet many new lawyers at the firm and their existing and potential new clients, and that has required honing my proverbial “elevator pitch.” That elevator speech always includes a discussion of ad tech, starting with an explanation of what it is.

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A Flurry of Right to Repair Activity from the FTC – What You Need to Know

“Right to repair” is a consumer protection issue that is rapidly picking up steam. In addition to federal legislation that was introduced in 2022, there has been quite a lot of recent state legislative activity. And we have seen a lot more Federal Trade Commission (FTC) activity on the issue lately.

So what exactly is the right to repair? A 2021 FTC report to Congress, cleverly called “Nixing the Fix,” described the right to repair as addressing how manufacturers may limit repairs by consumers and repair shops, and how those limitations may increase costs and limit consumer choices. The report discussed the issue through a broad regulatory lens and discussed several potential FTC repair tools in this area, including the Magnuson-Moss Warranty Act. The Mag-Moss Warranty Act – not to be confused with Mag-Moss rulemaking – broadly addresses issues involving warranties for consumer products. The “anti-tying” section of the act generally prohibits warranty provisions that provide that a consumer will lose warranty coverage if they don’t use company parts for repair unless the company also provides those parts free of charge. There is a lot more to the act, but for today, that’s all we need to know. In short, the anti-tying provisions do not look kindly on warranty provisions that restrict repair options for consumers.

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