In the past year, plaintiffs have filed a wave of lawsuits asserting claims under the Video Privacy Protection Act (“VPPA”) in connection with the alleged use of third-party pixels on websites that offer video content. A recent decision establishes the limits of the VPPA’s reach and provides a well-reasoned ground for future motions to dismiss.
Oregon Legislature Passes Consumer Privacy Act
On June 22, 2023, the Oregon state legislature passed the Oregon Consumer Privacy Act, S.B. 619 (the “Act”). This bill resembles the comprehensive privacy statutes in Colorado, Montana, and Connecticut, though there are some notable distinctions. If passed, Oregon will be the twelfth state to implement a comprehensive privacy statute, joining California, Virginia, Colorado, Connecticut
FTC Announces COPPA Settlement Against Ed Tech Provider Including Strict Data Minimization and Data Retention Requirements
On May 22 the Federal Trade Commission (“FTC”) announced a $6 million settlement with Edmodo, an ed tech provider, for violations of the COPPA Rule and Section 5 of the FTC Act. The FTC described this settlement as the first FTC order that will prohibit an ed tech provider from requiring students to provide more
Iowa Enacts Comprehensive Consumer Privacy Law
On March 28, Governor Kim Reynolds signed into law SF 262, making Iowa the sixth state to enact a comprehensive consumer privacy law. The new law will take effect on January 1, 2025.
As we discuss here, Iowa’s privacy law shares a number of key similarities to existing state privacy frameworks, including providing
FTC Issues New Guidance Regarding Health Products
On December 20, 2022, the Federal Trade Commission (“FTC”) announced its issuance of Health Products Compliance Guidance, which updates and replaces its previous 1998 guidance, Dietary Supplements: An Advertising Guide for Industry. While the FTC notes that the basic content of the guide is largely left unchanged, this guidance expands the scope of the previous guidance beyond dietary supplements to broadly include claims made about all health-related products, such as foods, over-the-counter drugs, devices, health apps, and diagnostic tests. This updated guidance emphasizes “key compliance points” drawn from the numerous enforcement actions brought by the FTC since 1998, and discusses associated examples related to topics such as claim interpretation, substantiation, and other advertising issues.
Identifying Claims and Interpreting Advertisement Meaning
The updated guidance first discusses how claims are identified and interpreted, including the difference between express and implied claims. The updated guidance emphasizes that the phrasing and context of an advertisement may imply that the product is beneficial to the treatment of a disease, which in turn would require that the advertiser be able to substantiate the implied claim with competent and reliable scientific evidence, even if the advertisement contains no express reference to the disease.
In addition, the updated guidance provides examples of when advertisers are expected to disclose qualifying information, such as when a product is targeted to a small percentage of the population or contains potentially serious risks. When the qualifying information is necessary to avoid deception, the updated guidance contains a discussion of what constitutes a clear and conspicuous disclosure of that qualifying information. Specifically, the guidance states that a disclosure is required to be provided in the same manner as the claim (i.e., if the claim is made visually, the disclosure is required to be made visually). A visual claim should stand out, and based on its size, contract, location, and length of time is appears, must be easily noticed, read, and understood. An audible disclosure should be at a volume, speed, and cadence so as to be easily heard and understood. On social media, the guidance states a disclosure should be “unavoidable,” which the FTC clarifies does not include hyperlinks. The qualifying information should not include vague qualifying terms, such as that a product “may” have benefits or “helps” achieve a benefit.
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CPPA Posts Updated Draft Rules
The California Privacy Protection Agency (CPPA) staff has posted updated draft rules implementing the California Privacy Rights Act (CPRA) today. As a next step, the rulemaking will undergo a 15-day public comment period, and comments are due Monday, November 21, 2022.
Artificial Intelligence & NYC Employers: New York City Seeks Publication of Proposed Rules That Would Regulate the Use of AI Tools in the Employment Context
Many employers and employment agencies have turned to artificial intelligence (“AI”) tools to assist them in making better and faster employment decisions, including in the hiring and promotion processes. The use of AI for these purposes has been scrutinized and will now be regulated in New York City. The New York City Department of Consumer
New FTC Report on Dark Patterns
Last week, the FTC announced its release of a staff report discussing key topics from the April 29, 2021 workshop addressing dark patterns. The report states that the FTC will take action when companies employ dark patterns that violate existing laws, including the FTC Act, ROSCA, the TSR, TILA, CAN-SPAM, COPPA, ECOA, or other statutes
California Attorney General Announces First CCPA Settlement
Today, the California Attorney General announced the first settlement agreement under the California Consumer Privacy Act (“CCPA”). The Attorney General alleged that online retailer Sephora, Inc. failed to disclose to consumers that it was selling their information and failed to process user requests to opt out of sale via user-enabled global privacy controls. The Attorney
California Privacy Protection Agency to Hold Special Meeting to Discuss Proposed Federal Privacy Legislation
The California Privacy Protection Agency (“CPPA”) announced it will hold a special meeting on July 28, 2022 at 9 a.m. PST to discuss and potentially act on proposed federal privacy legislation, including the bipartisan American Data Protection and Privacy Act (“ADPPA”) (H.R. 8152). The ADPPA is a comprehensive data privacy bill that advanced through