Ad Law Access Podcast

Gonzalo E. Mon This week, NAD released Influencer Trust Index: Consumer Insights 2025. The report starts by noting that last year, 82.7% of marketers in the US leveraged influencers in creative campaigns, driving the influencer marketing industry to a $24 billion domestic valuation. Despite this growth, a survey commissioned by NAD suggests that the industry faces serious challenges.

FTC Takes a ShOt at Telehealth Program for Allegedly Deceptive Pricing, Reviews, and Weight Claims by Kelley Drye Advertising Law

FTC Negative Option Rule Vacated by Eighth Circuit Just days before the FTC's new Negative Option Rule was set to take effect, the Eighth Circuit vacated it entirely. What does that mean for federal enforcement, and how should businesses approach autorenewal compliance now? In this Ad Law Access podcast episode, host Simone Roach walks through the key takeaways from the ruling and the broader landscape ahead from the blog post from Beth Chun and Aaron Burstein. #KelleyDrye #AdLawAccess #NegativeOption #AutoRenewal #FTC

Four states. Four amended privacy laws. One message: compliance is not one-size-fits-all. In this episode of the Ad Law Access podcast, Sinone Roach brings us Alysa Hutnik, Alexander Schneider, and Meaghan M. Donahue's unpacking of the growing complexity of state privacy frameworks, including: • Connecticut's redefinition of profiling and sensitive data • Montana's tightened thresholds and GLBA carve-outs • Expanded protections for children's data • Key disclosure, opt-out, and notice obligations across states If your business has 300+ employees nationwide, this is one to catch.

Aaron J. Burstein, Andrea deLorimier On July 8, Connecticut Attorney General William Tong announced a settlement with TicketNetwork, Inc. for alleged violations of the Connecticut Data Privacy Act (CTDPA). The settlement is the first publicly announced enforcement action under the state's comprehensive privacy statute, which went into effect on July 1, 2023.

The final day of the Attorney General Alliance Annual Meeting covered some of the most urgent and complex issues facing law enforcement and AGs today: • Proactive public-private collaboration • Technology-facilitated harms (and how AGs are responding) • Earned wage access and the evolving regulatory landscape Your host Simone Roach brings us the break down from Paul Singer, Abigail Stempson, Beth Chun, and Andrea deLorimier. https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/2025-aga-annual-meeting-wrap-up-day-3

Gonzalo E. Mon Coterie Baby advertises that its diapers provide ​“up to 4x more absorbency” and ​“up to 3x drier skin” compared to ​“leading brands.” P&G, the maker of Pampers – one of the two leading brands of diapers – challenged this claim (among others) before NAD. One of the key questions in the case is what evidence is necessary to support an ​“up to” superiority claim involving multiple competitors.

Paul L. Singer, Abigail Stempson, Beth Bolen Chun, Andrea deLorimier

Gonzalo E. Mon, Beth Bolen Chun In our most recent ​“Junk Fee” Legislative Roundup, we noted that the Connecticut legislature had introduced a bill that could require companies to include mandatory fees in their prices. On June 10, 2025, Connecticut's Governor signed that bill into law.

Paul L. Singer, Abigail Stempson, Beth Bolen Chun, Andrea deLorimier The Attorney General Alliance (AGA) hosted its 2025 Annual Meeting last week, bringing together state attorneys general and their staff, legal practitioners, and industry participants to discuss various topics important to AGs. In the first post of this three-part series, we explore the first day of panels, which included discourse on counterfeit prescriptions and fentanyl, innovative tools to disrupt human trafficking, unregulated synthetically derived substances, and gift card fraud. The Annual Meeting is the premier event hosted by the AGA each year, with almost 600 participants engaging in dialogue around the most critical legal issues facing the states and identifying opportunities for public/private partnerships to address those issues.

In this first episode of Privacy Perspectives, a new Ad Law Access podcast mini-series, Alex Schneider talks with Celine Guillou about how businesses can put their best foot forward when engaging with enforcement agencies and regulators in privacy and security investigations. Celine recently joined Kelley Drye as Special Counsel after serving in the Enforcement Division of the California Privacy Protection Agency (CPPA). She shares insights from her time at the CPPA, including common areas of regulatory focus and practical guidance for responding to enforcement requests. Alex and Celine also discuss the broader landscape of state privacy laws, emerging enforcement trends, and steps companies can take to strengthen compliance programs before an investigation ever starts. ABOUT THE SPEAKERS Celine Guillou Special Counsel, Advertising and Privacy Group Former Enforcement Attorney, California Privacy Protection Agency cguillou@kelleydrye.com (213) 547-4946 www.kelleydrye.com/people/celine-m-guillou Alex Schneider Special Counsel, Advertising and Privacy Group aschneider@kelleydrye.com (202) 342-8634 www.kelleydrye.com/people/alexander-i-schneider RESOURCES Subscribe to the Ad Law Access blog: www.kelleydrye.com/subscribe Subscribe to the Ad Law News newsletter: www.kelleydrye.com/subscribe Visit the Advertising and Privacy Law Resource Center: www.kelleydrye.com/advertising-and-privacy-law Find all of our links here: linktr.ee/KelleyDryeAdLaw

Gonzalo E. Mon, Katie Rogers The International Bottled Water Association (or ​“IBWA”) challenged over 50 express and implied claims by Boxed Water is Better (or ​“BWIB”), suggesting that boxed water is better for the environment. Previously, we looked at what NAD had to say about whether advertisers can substantiate green claims using a mass balance accounting approach. Today, we'll look at three other types of claims in the case.

Gonzalo E. Mon The International Bottled Water Association (or ​“IBWA”) challenged over 50 express and implied claims by Boxed Water is Better (or ​“BWIB”), suggesting that boxed water is better for the environment. NAD's decision covers a lot of ground and is worth reading for anyone who makes green claims, but in this post, we'll just focus on one issue NAD hasn't addressed in detail before – mass balance accounting.

Gonzalo E. Mon, Beth Bolen Chun On May 9, 2025, New York Governor Kathy Hochul signed a large budget bill with ​“major components of legislation necessary to implement the state transportation, economic development, and environmental conservation budget for the 2025-2026 state fiscal year.” Buried in Part W of the 99-page bill are various provisions that will also impact how companies can offer automatic renewal programs in New York, starting this November. Some of these changes appear to echo Negative Option Rule and California Automatic Renewal Law amendments, while others are more prescriptive.

Laura Riposo VanDruff, Andrea deLorimier On Thursday, the U.S. House Committee on Financial Services Subcommittee on Financial Institutions held a hearing entitled, ​“Framework for the Future: Reviewing Data Privacy in Today's Financial System.” Hearing testimony explored whether there is need for a federal privacy statute and how the financial services industry, which is already regulated by the Gramm-Leach-Bliley Act (“GLBA”) and other sector-specific statutes, would fit into such a standard.

Paul L. Singer, Beth Bolen Chun, Abigail Stempson, Andrea deLorimier This week, a bipartisan group of 42 attorneys general filed an amicus brief asking the U.S. Court of Appeals for the Third Circuit to uphold Daniel's Law, a New Jersey statute enacted to protect public servants from ​“doxing” — i.e., maliciously posting someone else's personal information online to incite harassment or violence.

Gonzalo E. Mon Over the past few months, two firms have filed a series of class action lawsuits against a number of companies – including Celsius, Shein, and Revolve – over their influencer campaigns. Leveraging the same template, the firms have filled in the blanks to file at least two more lawsuits, these against Alo Yoga and Beach Bunny Swimwear.

Ioana Gorecki, Beth Bolen Chun, Paul L. Singer If you've been keeping tabs on the AI legal landscape lately, one thing is clear: states aren't waiting. Over the past year, lawmakers across the country have introduced—and in some cases passed—a flurry of bills aimed at regulating the use of AI systems, particularly in the areas of consumer protection, data privacy, and transparency. From algorithmic bias bans to generative AI labeling and ADMT restrictions, a patchwork of new AI rules is quickly taking shape.

Paul L. Singer, Beth Bolen Chun, Abigail Stempson, Zach Cihlar Utilizing regulatory powers under its UDAP law, the Missouri Merchandising Practices Act (the ​“MMPA”), Missouri Attorney General Andrew Bailey announced a new rule, codified as 15 C.S.R § 60-19, that would prohibit social media companies from requiring their users to rely on the company's in-house content moderation algorithm. Instead, social media companies must offer ​“algorithmic choice” to users. In a press release, the Missouri AG called the rule the first of its kind in the nation.

Gonzalo E. Mon A beauty influencer posted a video on TikTok that purported to show how Huda Beauty's Easy Bake Setting Spray is stronger and lasts longer than Charlotte Tilbury Beauty's competing spray. Huda reposted the video on its Instagram account. Although the influencer doesn't have a formal relationship with Huda and wasn't required to post the video, she does periodically receive free products from the company.

Gonzalo E. Mon Church & Dwight ran ads for TheraBreath Mouthwash that featured a dentist in a white lab coat identifying him as Dr. Harold Katz. In some of the ads, Dr. Katz holds the product and states: ​“It's a better mouthwash. I guarantee it.”

Aaron J. Burstein, Alexander I. Schneider On May 6, the California Privacy Protection Agency (CPPA) announced a settlement with Todd Snyder, Inc. over allegations that the men's retail brand violated CCPA rules on submission and fulfillment of privacy rights requests. Todd Snyder agreed to pay $345,178 and to modify its CCPA compliance program to resolve the case.

Paul L. Singer, Abigail Stempson, Beth Bolen Chun, Andrea deLorimier Last week, Washington Attorney General Nick Brown, a bipartisan coalition of attorneys general from ten other states, and the California Department of Financial Protection and Innovation wrote the Consumer Protection Financial Bureau's Acting Director, Russell Vought, pressing the CFPB to issue ​“long-delayed restitution” to consumers allegedly harmed by a business offering online training for tech positions.

Paul L. Singer, Beth Bolen Chun, Abigail Stempson, Andrea deLorimier Twice a year, state attorneys general consumer protection staff gather to discuss consumer protection issues. Our state attorney general team was at the public sessions, attending and presenting on issues important to AGs. We first heard from NAAG's Todd Leatherman, Director, Center for Consumer Protection, and Brian Kane, Executive Director, as they explained the changes to the format this year resulting from interest from the public. These conferences are now accepting input from the public on panel topics, and NAAG extended the public's attendance from half a day to a full day. As Kane put it, part of the benefits of these conferences is ​“between the panels” allowing people from AG offices and the public to have conversations in person.

Gonzalo E. Mon If you lose a case before NAD and NAD recommends that you stop making certain claims, how long do you have to stop making them? Although there's no clear answer, a recent decision provides some guidance on what NAD expects.

Donnelly L. McDowell, Aaron J. Burstein, Beth Bolen Chun Late Friday, the FTC announced that the Commission had voted 3-0 to extend the compliance deadline for the to-be-effective provisions of the Negative Option Rule, formerly known as the ​“Click to Cancel Rule.” While the Ferguson-led FTC appears to no longer embrace the Khan era branding of ​“click to cancel,” more importantly, it appears that all of the provisions of the Rule will take effect as written in July, barring court action in pending litigation.

Alysa Z. Hutnik, Alexander I. Schneider, Meaghan M. Donahue On April 29, 2025, the Senate Public Safety Committee voted 6-0 to advance legislation that would exempt processing of personal information for a commercial business purpose from coverage by the California Invasion of Privacy Act (CIPA). Three years after extensive wiretapping litigation first emerged targeting the use of website pixels or similar technologies, the amendment could mark the end of the road for a large swath of wiretap litigation in the state and potentially nationwide.

Gonzalo E. Mon Earlier this month, we posted about a decision in which NAD determined that influencer Brittany Mahomes had not adequately disclosed her relationship to Skims Body – a fashion brand that specializes in underwear and loungewear – in various Instagram posts. This week, NAD announced another decision related to the same campaign. This second inquiry was directed towards 1Up Sports Marketing, who represents Mahomes.

Gonzalo E. Mon Two years ago, we posted about a proposed class action lawsuit that accused Old Navy of spamming consumers with emails that included false or misleading information about the duration of sales. For example, the complaint alleged that the retailer advertised that a sale would only last one week, even though the sale continued the following week.

Paul Singer, Beth Chun, Abigail Stempson, Andrea deLorimier Last week, New Jersey Attorney General Matthew J. Platkin announced a lawsuit against Discord, Inc., a popular messaging application provider, for allegedly misleading parents about the efficacy of its safety controls and obscuring risks facing children on the application.

Aaron J. Burstein, Alysa Z. Hutnik, Leah Plagge Rabkin On April 11, the Department of Justice issued an extensive set of FAQs on its Bulk Data Access Rule and advised that it ​“will not prioritize civil enforcement actions against any person for violations” of the Rule through July 8, 2025, ​“so long as the person is engaging in good faith efforts” to comply with the Rule. (DOJ refers to the ​“Data Security Program” or ​“DSP.” We refer to ​“the Rule” to emphasize that it is a legally binding regulation with obligations that extend beyond data protection.)

Gonzalo E. Mon When Apple announced the iPhone 16 last year, it advertised that it would be ​“the first iPhone built for Apple Intelligence.” Apple touted several AI features and advertised that Apple Intelligence is ​“Available Now.” In reality, some features – including Priority Notifications, Image Generation, and the ChatGPT integration into Siri and Writing Tools – were not available at the time of launch. A disclosure at the bottom of the Apple Intelligence page explained: ​“Some features will become available in software updates in the coming months.”

Katie Rogers, Gonzalo E. Mon In 2021, California enacted the SB 343 – ​“Truth in Recycling Law” – which generally prohibits companies from using the ​“chasing arrows” symbol or otherwise implying that a product or package is recyclable, unless the product or package is considered recyclable pursuant to specific criteria developed by the state's Department of Resources Recycling and Recovery.

Gonzalo E. Mon Yesterday, we posted about a decision in which P&G challenged claims that Rascals made about the absorption capabilities of its diapers. Rascals also advertised: ​“210,000+ 5-star reviews of Rascals Products.” P&G thought something about that claim smelled funny and challenged that, too

Paul L. Singer, Beth Bolen Chun, Abigail Stempson, Andrea deLorimier Florida Attorney General James Uthmeier sued Snap, Inc., the operator of the social media platform Snapchat, this week for violations of Florida's HB 3 (§§ 501.1736–.1738, Fla. Stat. (2024)) and the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The complaint alleges that Snapchat is a covered social media company under HB 3 because the app features allegedly addictive features that unfairly harm its users. The suit further asserts that Snap has violated that statute by permitting 13-15 year olds to obtain accounts inappropriately.

Gonzalo E. Mon Rascals advertises that the Hydrolock Core in its diapers ​“holds up to 25 x its weight” and ​“absorbs 15 x its weight.” P&G thought that claim was full of crap and filed a challenge before the NAD, arguing that Rascals supported its claims with tests that didn't mirror real-world use. NAD's decision holds valuable lessons for advertisers across industries.

Paul L. Singer, Beth Bolen Chun, Abigail Stempson, Andrea deLorimier Last week, the Kelley Drye State AG team attended the National Association of Attorneys General (NAAG) Attorney General Symposium. The panels included a number of topics of importance to state attorneys general including cell phone jamming in prisons, social engineering or ​“pig butchering” scams, human trafficking, youth and young adult mental health especially pertaining to student athletes, cannabis legislative trends and enforcement, and disaster preparedness and response. In addition, below we've highlighted some of the other topics discussed by AGs.

Gonzalo E. Mon A recent class action asks how it's possible that a Chinese company, with allegedly ​“no fashion designers or background, selling flea-market quality clothes, became a giant in the fast-fashion industry in the US?” The answer, according to the complaint, ​“is simple: undisclosed endorsements on social media.” In this case, the plaintiffs allege that Shein engages influencers to promote its products without disclosing their relationships to the company.

Gonzalo E. Mon, Christie Grymes Thompson In 2020, plaintiffs filed a class action complaint in California federal court against Bigelow Tea, alleging that the company falsely represents that its teas are made in the United States, when the tea leaves are actually grown and processed abroad. Among other things, the plaintiffs pointed to Bigelow's use of term ​“Manufactured in the USA” on the backs of certain packages.

Donnelly L. McDowell, Ioana Gorecki Today, the Senate confirmed Mark Meador as the newest Republican commissioner of the Federal Trade Commission with a 50-46 vote along party lines. Meador's confirmation solidifies a Republican majority on the Commission, following the recent dismissals of Democratic commissioners Alvaro Bedoya and Rebecca Kelly Slaughter by President Trump, which we covered previously.

Alysa Z. Hutnik, Jennifer Rodden Wainwright On April 7, 2025, the FCC's Consumer and Governmental Affairs Bureau (CGB) released an order announcing a one-year delay of a new implementing rule for the Telephone Consumer Protection Act (TCPA) related to consumers' ability to revoke consent to receive autodialed and/or prerecorded calls and texts. The order was issued just days before the rule was scheduled to take effect on April 11. Below we summarize CGB's action and explain what it means for businesses going forward.

Gonzalo E. Mon As part of its on-going monitoring of influencer campaigns, NAD recently launched an inquiry to assess whether influencers Brittany Mahomes and Lana Del Rey had adequately disclosed their relationship to Skims Body – a fashion brand that specializes in underwear and loungewear – in various Instagram posts.

Paul L. Singer, Alysa Z. Hutnik, Beth Bolen Chun, Abigail Stempson, Jennifer Rodden Wainwright On March 17, a bipartisan group of attorneys general from 27 states and the District of Columbia filed an amicus brief in the Eleventh Circuit Court of Appeals in support of the National Consumer Law Center's proposed petition for rehearing en banc of the court's decision to overturn the FCC's so-called ​“one-to-one” consent rule for telemarketing calls and texts under the Telephone Consumer Protection Act (TCPA). The rule, intended to address what the FCC called the ​“lead generator loophole,” would have amended the definition of ​“prior express written consent” by requiring a consent agreement to be specific to ​“no more than one identified seller” and be ​“logically and topically associated with the interaction that prompted the consent.”

Beth Bolen Chun, Salim Rashid, Gonzalo E. Mon Businesses offering subscriptions or other ongoing services continue to face a growing, and increasingly complex, patchwork of state auto-renewal laws (ARLs). 2025 brings a fresh wave of developments across the states. In addition to newly introduced and enacted ARL legislation this session, a number of state laws are now in effect as of January 1, 2025. Together, these proposed and new laws reflect a continued trend toward more prescriptive disclosure, notice, and cancellation requirements, with each state introducing its own unique take.

Donnelly McDowell, Ioana Gorecki Yesterday, we covered President Trump's firing of Democratic FTC Commissioners Alvaro Bedoya and Rebecca Slaughter and explored whether a two-member Commission constitutes a quorum for the agency to take formal action. Today, we take a look at the FTC's first 50 days under Chair Andrew Ferguson, reflecting on key developments and early insights relating to the agency's consumer protection agenda. So far, the FTC has issued several business blog posts, formed two new task forces, initiated information-gathering efforts, and announced three new enforcement actions. While the new Commission leadership continues to shape its priorities, early indications suggest a strong focus on combating consumer fraud and scrutinizing content censorship practices by large technology companies.

Gonzalo E. Mon DREO advertises that it is the ​“No. 1 Fan and Heater Brand” in the United States. Lasko, a competitor, thinks that it is, in fact, the ​“number 1” brand in both of those categories. Because there can't be two ​“number 1” brands, Lasko filed a challenge before the NAD to dispute its competitor's claims.

Alysa Hutnik, Laura Riposo VanDruff, Jennifer Rodden Wainwright Most businesses that send texts to their target audiences are focused on compliance with the federal Telephone Consumer Protection Act (TCPA) – and understandably so, given the explosion in class action litigation stemming from the TCPA's private right of action. However, outreach to consumers by phone, including texting, can also come under scrutiny under a patchwork of state laws, many of which have unique nuances that create compliance challenges.

Katie Rogers, Gonzalo Mon Last week, consumers in four states filed a proposed class action against Amazon, accusing the company of greenwashing by misleading consumers about the sustainability of the company's Amazon Basics line of paper products. The 123-page complaint covers a lot of ground, but here are some of the key allegations

President Trump fired the two Democratic members of the Federal Trade Commission, Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter. President Trump's action leaves Chair Andrew Ferguson (R) and Commissioner Melissa Holyoak (R) as the only two members of the Commission, which has many wondering: can the FTC take formal action by a 2-0 vote cast by members of the same party? Can Trump refuse to appoint new Democratic members? What happens next for Commissioners Bedoya and Slaughter? See the blog post from John E. Villafranco and Andrea deLorimier: https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/can-two-ftc-commissioners-of-the-same-party-constitute-a-quorum Podcast hosted by Simone Roach

Gonzalo Mon Simpler Hair Color (or ​“SHC”) advertises that its products are ​“Rated #1 Men's Hair Color” and ​“Rated #1 Men's Hair & Beard Color” based on ​“Trustpilot​.com verified reviews.” Combe, a competitor, challenged the #1 claims before the NAD, arguing that the claims are unsubstantiated because Trustpilot doesn't have a ​“Men's Hair Color” category and that SHC is not listed as #1 in any actual Trustpilot category.

As news hit that President Trump fired the two remaining Democratic FTC Commissioners Alvaro Bedoya and Rebecca Slaughter, many questions abound. Would Commissioners Bedoya and Slaughter contest the dismissals? (The answer there appears to be an emphatic yes – with both issuing statements last night to that effect.) Another question: what will this mean for day-to-day operations at the Commission, including the ability for the FTC to continue to bring actions with only two commissioners of the same party, an issue my colleagues cover in a separate post here. Perhaps the biggest question – with implications far beyond our day-to-day advertising and privacy worlds – is whether the Supreme Court will overturn its 1935 decision in Humphrey's Executor, a decision that forms the longstanding constitutional basis for independent agencies like the FTC, Consumer Product Safety Commission (CPSC), Securities and Exchange Commission (SEC), Federal Communications Commission (FCC), Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB), amongst others. As a refresher, in Humphrey's Executor, the Supreme Court upheld the insulation of FTC Commissioners from removal by the President at will – finding that the Constitution permits Congress to create expert independent agencies led by a group of principal offers removable only for cause.