Finally... it's 2022
2021, another doozy, is thankfully in the rearview mirror. The end of the year brought a slew of advertising law activities (among other chaos), from Covid related scams to the pipeline of privacy rules that will directly affect advertising and data gathering in 2022. The FTC was busy too - writing Notices of Penalty Offenses to more than 700 brands warning about unfair and deceptive acts and practices related to endorsements, and updating other guidelines and rules. At the state level, the Attorney Generals saw an increase in scams and consumer fraud, and of course, we had some major issues with health and other Covid claims.
2022 is poised to be another busy one. Here are my recommendations on what you should be on the lookout for as we get into the new year.
1. Automatic Renewals. Subscription practices continue to be an area of concern for the FTC. It recently issued an Enforcement Policy Statement communicating how the FTC would enforce against unfair and deceptive practices in the context of recurring subscriptions or difficult cancellation methods. Colorado and Delaware enacted new automatic renewal laws, California and Illinois updated theirs. If you offer subscriptions or automatic renewals, review your policies and notice practices
2. Influencers and Endorsements. The FTC continues to scrutinize brands’ use of influencers and endorsements. Update your processes and your compliance program if you use influencers and ensure that continues to make compliance a priority in this arena. Use influencers? Update your contracts and compliance requirements to avoid unfair or deceptive acts such misrepresenting an endorser or using testimonials to make unsubstantiated or deceptive claims.
3. Made in the USA and “sustainability”. Two popular and enticing claims to make about your product but they have to be substantiated with the right data. In July the FTC codified its “Made in the USA” guidelines into a formal rule, prohibiting advertisers from making express and implied “Made in the USA” and other origin claims, among other regulations. Further, the FTC’s Green Guides are clear about their position regarding sustainability and environmental claims – don’t make “broad and unqualified” claims such as “eco-friendly”, or “green” as there is very little likelihood of substantiation of those claims. Several well-known brands got caught in these crosshairs this year.
4. Privacy, Privacy, Privacy. With the absence of a federal law, individual states have, over the last several years, taken it upon themselves to come up with their own privacy regulations. Three new ones are going into effect in 2023, including Virginia’s Consumer Data Protection Act and Colorado’s Privacy Act, and others will be updated in 2022, such as California’s CPRA. The EU is also making changes to its hallmark privacy rule, the General Data Privacy Rule as well and the UK will be solo now that it’s not part of the EU.
5. State Attorney Generals. Similar to the FTC, State AG’s will also have a renewed focus on consumer protection, and with more than 30 AG seats up for grabs in 2022, many will use consumer protection as part of their campaign messages. See 4 above – Privacy. Many states in addition to those above will make privacy a priority and may push additional laws to the forefront. Other priorities may include regulating marketing practices (vaping, opioids), price gauging (Covid related and other), and the issue of fraud brought about by new technology.
Why This Matters. Like the rest of us making New Year’s resolutions, the Ad Law world is monitoring changes in the industry and the “resolutions” to follow. Keep an eye on the FTC, on your own state regs, and even more importantly prepare internally for some updates to contracts and compliance procedures. 2021 was active in itself and we are poised to continue this pace in 2022.