Yogi Berra did indeed once famously say, “It’s not over till it’s over.” (Actually, he said, “It ain’t,” but that would not have survived the proofreader’s scrutiny). Facebook must be thinking that too when it comes to its settlement with the FTC. Just to recap briefly:
On July 24, 2019, the Department of Justice (DOJ), on behalf of the FTC, filed a proposed settlement of the Commission’s long-running investigation into whether Facebook violated the terms of a previous consent order. The proposed settlement imposed several new restrictions on Facebook’s operations with respect to consumer privacy, including creating an independent board-level privacy committee and independent privacy compliance officers. In addition, the settlement proposed an eye-popping $5 billion civil penalty. However, the Commission vote to approve the filing of the proposed settlement was 3-2, with Commissioners Chopra and Slaughter both dissenting because they felt the proposed settlement was not tough enough.
The two democratic commissioners argued that while $5 billion is certainly a lot of money to me and you, it is a mere pittance to the likes of Facebook. In addition, they believed that the new compliance requirements were not sweeping enough and that the Commission should have given serious consideration to holding Facebook’s officers personally liable for the company’s alleged violation of its prior consent order. Continue Reading
How many times have you felt the thrill of buying a lottery ticket? What about the excitement before opening a sealed pack of baseball cards or the curiosity before diving for a mystery prize in a cereal box? Now imagine digitalized versions of all these items – in your favorite video game – and they’re up for grabs, at least, for a price. Whether it is real money, game time, or in-game currency, you’re asked to pay for these digital mystery boxes, otherwise known as “loot boxes.” For most of these loot boxes, what you get is a surprise. For others, you can guess what you might get. But is this gambling? 
For our readers who are following and interested in CCPA developments (and what advertiser is not!?), please see today’s 
Today the Federal Trade Commission (FTC) hosted a half-day workshop looking at Made in USA claims and the FTC’s guidance and enforcement. For those who want to watch “all or substantially all” of the event, the videos and materials can be accessed 
There is nothing particularly new about the idea of lead generation in marketing. Companies have from the very beginning paid their own employees or paid others to help find prospects for their goods and services. However, in today’s digital world and with the myriad different ways in which consumer information is gathered, the use of third parties for lead generation has proliferated. Not surprisingly, so has the abuse of lead generation efforts.
California’s new “bot” law, Cal. Bus. & Prof. Code § 17940, et seq. (SB 1001) takes effect on July 1, 2019. This means that any company or individual that uses bots online for solicitations of commercial transactions or to influence a vote in an election should ensure appropriate “clear, conspicuous, and reasonably designated” disclosures are made to inform persons with whom a bot communicates or interacts with that it is a bot and not a human. SB 1001 is not a ban of all bots, rather, it simply aims to foster transparency for California online users.
We have practiced in the consumer protection space collectively for more than 50 years and have not once had occasion to consult the Federal Trade Commission’s (FTC or Commission) Nursery Guides. Perhaps then it is no surprise that the FTC has decided that after 40 years it was time to say goodbye to the guides. Lest there be any confusion, “nursery” in this case refers to plants, not babies. The guides prohibited various misrepresentations about plants, including their age, hardiness, years to maturity, etc. In addition, the guides prohibited the use of names that misrepresent a plant’s true identity; the substitution of plants without notice; misrepresentations relating to size and grade or blooming or fruiting ability; failure to disclose whether plants were collected from the wild or misrepresenting the origin of a plant or bulb. (Now, you’re probably starting to realize why we’ve not counseled on this.) Unlike many of the more recent Commission guides, such as the Green Guides, the Nursery Guides typically do not provide examples of what a term or claim (e.g., “eco-friendly”) might imply. 
On May 31, the Food and Drug Administration (FDA) held a hearing at its headquarters in Silver Spring, Maryland, to hear from the public about cannabidiol (CBD). The popularity of CBD was reflected in participation at the meeting, which took place in a jam-packed conference room and involved 120 speakers, selected from more than 400 applicants. CBD is a cannabinoid found in the cannabis plant and now also found in coffee shops, pharmacies and, of course, online. It’s sold in oils, pills, gummies, lollipops, coffee, shampoo, pain cream and dog treats, to name just a few items. Companies claim that these products treat a wide range of ailments, including stress, sleeplessness and pain. But despite its seeming ubiquity, CBD’s legal status is a work in progress. By way of background, CBD was prohibited by federal law until the 2018 Farm Bill removed hemp from the definition of marijuana. That action created a veritable gold rush as companies raced into the sector. But some states still prohibit the substance, and the FDA prohibits unsubstantiated claims related to CBD, as it does for anything else within its regulatory ambit. Additionally, because CBD was approved for use in a drug before being used in conventional foods or supplements, the FDA prohibits its use in those products without additional rulemaking. The hearing was an opportunity for the FDA to hear about these issues and more. 
The junior Senator from Missouri, Joshua Hawley (R), has introduced s 1578, which would require the Federal Trade Commission (FTC) to create and make available a “do not track” (DNT) signal that consumers can associate with their devices and require that online services look for the signal and, when indicated, not collect, use or share data beyond what is necessary to operate the service, and specifically not for Interest-based Advertising (IBA), and, further, require third-party operators, including advertisers and adtech companies, not collect any data other than for the purpose of analyzing how or whether the user engaged with the operator’s program, and then only in a de-identified manner and without creating or contributing to a user profile. The proposed law would prohibit publishers from denying service to users that enable a DNT signal or provide them with a different level of service. That would ban charging a subscription fee for IBA-free access to make up for lost ad revenue (IBA commands higher prices than contextual or run of site ads), something that the California Consumer Privacy Protection Act (CCPA) does not prohibit. The FTC, and state AGs, would be able to enforce the law and it gives the FTC authority to seek civil penalties of $50 per affected user for negligent violations and $1000 per user, and a minimum fine of $100,000, for reckless or willful violations. There is no private right of action proposed and the bill does not preempt CCPA or other state law. This may be an attempt to influence the federal privacy legislation being drafted by Congressional leadership in both chambers. A coalition of advertising industry associations (