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Priorities and Trends Discussed at this Week’s NAAG Consumer Protection Fall Conference

By: Hannah Cornett and Ann-Marie Luciano

On October 27, 2020, the National Association of Attorneys General (“NAAG”) held its Fall Consumer Protection Conference virtually with more than 500 attendees.  The session involved a series of panel discussions with State Attorneys General (“AGs”), their senior staff, Federal Trade Commission (“FTC”) officials, and industry professionals on a number of topics of interest to businesses.  The following are our key takeaways from each panel:

Panel of Attorneys General: Consumer Protection Priorities

  • AGs continue to see an increase in COVID-19-related scams including price-gouging, robocalls, fraudulent and deceptive product claims, and scams involving unemployment and housing.
  • Despite the increased COVID-19 related activity, the AGs indicated that they continue to pursue high-profile multistate investigations, including matters involving the opioid crisis, vaping industry, and antitrust issues in the “big tech” industry.
  • The AGs emphasized that they almost always first engage with a business before taking action. The AGs expressed a desire to understand a business’s perspective and cautioned that businesses should not be too eager to litigate.

The ABCs of Advertising: An Overview of Advertising Law and Practice in the Modern Market

  • The FTC has seen an increase in COVID-19-related complaints involving health and safety, a failure to deliver goods, and business education.
  • The FTC remains active in pursuing actions that involve native advertising, deceptive rankings and reviews, and unsubstantiated endorsements made by social media influencers. Investigations into deceptive online rankings and reviews typically fall into one of two categories: (1) companies that deceptively promote positive reviews; and (2) companies that actively suppress negative sentiment.
  • Many of the agency’s enforcement actions have involved a failure to disclose reviewer compensation or other material connections between the reviewer and advertiser.

California Consumer Privacy Act: What Is It, How Will It Affect You, And How It May Change

  • The panel discussed how the California Consumer Privacy Act’s (“CCPA”) new regulations provide detailed compliance procedures that still offer some flexibility for small businesses.  The regulations also account for the logistics of compliance, and provide practical guidance for businesses.  For example, the regulations include detailed guidelines for businesses to verify a customer’s identity before complying with a request for disclosure.
  • Businesses have been proactive in adapting to the new law, and often voluntarily change their practices soon after receiving a notice of non-compliance and within the CCPA’s 30-day opportunity to cure period.
  • Many states are considering legislation modeled after the CCPA, and the panelists recommended that states remain mindful of how the law should be operationalized, which includes allowing for flexibility and planning consumer education efforts.  The panelists urged states to use the opportunity to incorporate data minimization into any new statute or legal framework.  The panelists predicted that a regulatory shift towards data minimization will likely shift the industry away from targeted marketing efforts and towards a more contextual advertising approach, which poses fewer consumer privacy concerns.