The President’s recent Executive Order on reducing regulation and controlling regulatory costs represents the greatest potential change in federal regulatory policy since President Reagan’s 1981 Executive Order on federal regulation first provided for White House oversight of the regulatory process.
The Order requires three main things, with certain exceptions:
Continue Reading Regulatory Roll-Back: The President’s New “One In-Two Out” Regulatory Policy
As data security risks increase in their intensity, variety, and sophistication, Venable introduces Data Security Rules of the Road: A Guidebook to FTC Cases v1.0. The book is a valuable resource for businesses seeking to protect the security of personal information in ways that are consistent with guidance offered by the FTC.
With over a decade of experience dating back to the FTC’s very first foray in this area, Venable’s award-winning Privacy and Data Security Practice Group attorneys, with help from our in-house cybersecurity specialists and technologists, have deconstructed every one of the FTC’s more than five dozen enforcement actions and derived the key features and lessons for your company to apply. The result is a practical yet detailed overview that will help unite the legal and operational aspects of your cybersecurity program.
If you would like a copy of the book or would like to discuss its implications for your cybersecurity program, please contact Lucy Dempsey LGDempsey@Venable.com.
We previously blogged a few weeks ago about the FTC’s sweep of influencers and warning letters being sent regarding whether material connections are disclosed, and if so, if they are done clearly and conspicuously. The FTC has issued a press release with more detail. We now know there were over 90 such letters sent. For those who received a letter, the tendency might be to file it and move on, as the letters do not request follow up or require any action. This would be a mistake. Proactively engaging with the FTC to assure them there is no issue or to assure them that you are fixing compliance gaps is critical. If history is a guide, we fully expect the FTC to follow up and open investigations, at least into conduct, by some of the letter recipients.
The FTC’s Business Blog contains a few nuggets that may be of interest to those of us seeking to get disclosures done the right way, but perhaps with something other then #advertising as the first word in a post. The business blog suggests that on sites such as Instagram that prompt you to click for “more,” any disclosure must occur before the prompt, as many consumers may never click to see the additional content. Second, the blog suggests that #partner may be an ambiguous term. As it was not a shorthand like “spon,” this word has been a fairly common choice that perhaps now should be reconsidered. #thanks{brand} also made the list of inadequate disclosures. Finally and most interesting, the blog suggests that a disclosure at the end of a post, even if the post is short, might not be clear and conspicuous if provided with other #information. #humpday #taxesdone #didyounoticethis #endofblog.
Given the ubiquity of emoji, businesses have used them in commercial ad campaigns. Honda has used emoji in creative advertisements, releasing Aprils Fools’ ads in 2016 and again in 2017. Twentieth Century Fox created some buzz last year when it placed a billboard in Los Angeles advertising a movie release (guess which one) with the following message:
Translation: “Deadpool.” Adweek wrote an article entitled: “Deadpool’s Emoji Billboard Is So Stupid, It’s Genius.”
Continue Reading Copyright Considerations for using Emoji in Commercial Ads
Breaking up can be messy, whether you are the one doing the breaking up or the one being broken up with. And, we all know about the different ways to break up with someone. “It’s not you, it’s me . . .”, “I need space . . .”, “I’m washing my hair that year . . .” However, when it comes to the proper way of breaking up with a telemarketer over text message, a New Jersey federal court is primed to shed some light on the issue.
On January 12, 2017 plaintiff Amy Viggiano filed a class action lawsuit (Viggiano v. Kohl’s Dep’t Stores, Inc., No. 3:17-cv-00243 (D.N.J.), alleging that Kohl’s violated the Telephone Consumer Protection Act (TCPA) by sending unwanted text messages and requiring consumers to respond “STOP” to the texts to cancel them. Specifically, the complaint alleges that Kohl’s “sent millions of text messages to consumers after purporting to designate the exclusive means by which consumers may withdraw consent to receive such messages.” There generally can be no violation of the TCPA if the consumer has consented to receive marketing calls or text messages – at least absent a subsequent request to the sender to stop sending them. The Federal Communications Commission (FCC) has ruled that consumers have the right to revoke such consent by using any reasonable method, including orally or in writing. The issue in this case turns on whether, after the plaintiff unequivocally consented to receive marketing text messages from Kohl’s, she reasonably broke up with Kohl’s.
Business lending, negative option programs, and enterprise risk management are at the forefront of the April 13 edition of Venable’s Consumer Financial Services Digest.
In this issue, we discuss CFPB Director Cordray’s recent appearance before Congress where he noted that the CFPB has started engaging in supervisory activity regarding small business lending.
The coming of spring has been accompanied by good news for two food marketers—ConAgra and Bumble Bee Foods—in their respective court fights in California.
In the Northern District of California, a federal judge dismissed a putative class action against ConAgra alleging that the marketer’s Crunch N’ Munch product violated California’s unfair competition law since it contains partially hydrogenated oil (PHO), a food additive high in trans-fat. The complaint, filed by Tony Walker, specifically stated, “although safe, low-cost, and commercially acceptable alternatives to PHO exist, including those used in competing brands and even in other ConAgra products, ConAgra unfairly elects not to use safe alternatives in Crunch ‘n Munch in order to increase its profits at the expense of the health of consumers.”
Continue Reading Springtime for Food Marketers? Two Big Wins in California in Recent Days
It’s no secret that automatic renewal (or continuity or negative option programs) are on many regulators hit lists. Regulators argue that consumers are often unaware that they have signed up for services or products for which they will be billed on a monthly basis unless and until they cancel, particularly when it involves a free trial period. In some cases cancellation may not always be easy and the billing descriptor that appears on the consumer’s credit card statement may differ significantly from the branded product or service name. Finally, otherwise busy consumers may simply forget about the upcoming renewal, particularly if the subscription term is lengthy.
Regulators have responded by bringing numerous law enforcement actions, many of which seek to heighten disclosure requirements. At the federal level many of these enforcement actions are based in part upon ROSCA, the Restore Online Shoppers Confidence Act. (See our previous posts on ROSCA here.) The Unsubscribe Act, introduced in the House of Representatives earlier this year, seeks to tighten legal requirements for such programs even further.
Continue Reading Congress Takes Further Aim at Negative Option Programs
We wanted to alert retail readers to these developments in price advertising laws in the United Kingdom from our friends at Lewis Silkin.
Late last year new U.K. Pricing Practices Guidelines were published by the Chartered Trading Standards Institute, replacing the long standing guidelines which retailers and advertisers had been following for many years.
The new Guidelines are not just an edit of the old ones. They are a root and branch reform, taking a “principles-based” approach to the advertising of prices, consistent with the same principles based approach enshrined in the Consumer Protection Regulations 2008.
For those of us who are regular readers of FTC press releases, the allure of last week’s announcement that the FTC settled its lawsuit against prepaid card company NetSpend Corporation may be more in the substance – or lack thereof – of the announcement itself. In four sentences, the FTC simply stated that the advertiser agreed to settle, that the Commission vote approving the final order was 2-1, and that Acting Chairman Ohlhausen issued a dissenting statement.
No details were provided about the claims at issue or the monetary relief imposed on the advertiser. And the FTC did not, as it often does, publish an ancillary blog on the FTC Business Center website to educate us (albeit entertainingly) on all of the terrible things that must not be done. Is this a sign of how case announcements will be handled under the Ohlhausen administration? For companies that settle with the FTC to avoid the expense and distraction of litigating with the government, a departure from condemnatory FTC press releases would be welcome.
Continue Reading FTC Settles Major Prepaid Card Advertising Case and Doesn’t Say Much about It