Behind the Scenes

Arent Fox's advertising law blog - latest news and trends in advertising, data security & privacy, and fashion & entertainment.

Behind the Scenes
Privacy & Security - US & Abroad
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Tune In to Arent Fox On The Privacy Advisor Podcast

Last week, Sarah Bruno and Lourdes Turrecha joined International Association of Privacy Professionals (IAPP) Privacy Advisor editor Angelique Carson to discuss their experiences in the privacy field.

Sarah and Lourdes chat about how they got into the privacy field, how they stay tech savvy when their job is to keep top innovators compliant in industries spanning from fashion retail to big tech, and the big issues for privacy pros. From data flowing across the globe and mitigating data incidents to FTC regulations and PR risks, tune in for this episode of The Privacy Advisor Podcast here.

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Health Privacy & Security, Privacy & Security - US & Abroad
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White House Releases Health Initiative Data Security Framework

On May 25, 2016, the White House released its much anticipated Data Security Policy Principles and Framework (Security Framework) for President Obama’s Precision Medicine Initiative (PMI). The PMI is aimed at pioneering a new model of patient-powered research to improve health and treat disease, which takes into account individual differences in people’s genes, environments, and lifestyles.
 

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Advertising, E-Commerce, Privacy & Security - US & Abroad
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EU Reg Would Ban Retail Companies From Using Geo-Tracking In Online Shopping

Under a proposed EU regulation, online retail companies in Europe may no longer be able to use geo-tracking in online shopping. The European Commission released a draft regulation on May 25, 2016 that proposes the removal of geo-blocking for online shopping, stating that it wants to ensure that consumers seeking to buy products and services in an EU country, be it online or in person, are not discriminated against in terms of access to prices, sales, or payment conditions.
 

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E-Commerce
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Hurry Up & Wait: DOJ Again Delays Long-Anticipated ADA Rules Governing Website Accessibility

In July 2010, the United States Department of Justice (DOJ) released an Advanced Notice of Proposed Rulemaking (ANPRM) that would explicitly include websites as “places of public accommodation” under the ADA, and sought public comment regarding proposed rules intended to ensure that websites will be fully accessible to individuals with a wide variety of disabilities. Since that time, owners and operators of e-commerce websites have been anxiously awaiting the promulgation of new rules governing website accessibility, only to see the DOJ repeatedly delay issuance. In September 2015, we published an alert warning retailers of the impending promulgation of the new rules, only to see the DOJ delay issuance until April 2016.

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Advertising, Promotions, Sweepstakes & Contests
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Walgreens Settles Pricing Dispute After New York’s Years Long Investigation

What’s the News?

Walgreens recently settled with the state of New York over allegations that the drug retail chain misled consumers with its pricing, including value and clearance prices. According to the New York attorney general’s office, an undercover investigation showed that Walgreens was overcharging customers compared to the prices displayed in print advertising and on-shelf tags. Walgreens agreed to pay $500,000 to settle the dispute and has agreed to review and correct the allegedly misleading pricing practices. This should serve as a reminder to retailers in all industries of the need to exercise care in product pricing, as this area has become a common target for regulators and the plaintiff’s bar.

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Privacy & Security - US & Abroad
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SCOTUS Punts on Chance to Curb Consumer Privacy Laws

On Monday, the US Supreme Court sent a potential class action case back to the Ninth Circuit for reconsideration, marking an intermediary win for Spokeo Inc., which uses a “people search engine” to find, compile, and sell publicly available personal information. The company came under fire for publishing inaccurate personal information about plaintiff Thomas Robins in a case that was expected to have major implications on US privacy and consumer protection law.

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Privacy & Security - US & Abroad
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Heading for the Breaches: California Recommends Data Security Measures

The California Office of the Attorney General (OAG) recently released a report detailing a comprehensive analysis of the data breaches reported to the OAG between 2012 and 2015. Fifty million records of Californians were reportedly breached during those four years. The report acknowledges that security is a challenging endeavor for organizations, but points out that many of the breaches reported could have been prevented by taking reasonable security measures.
The report provides the following key recommendations for businesses:

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Advertising, Media & Entertainment, Privacy & Security - US & Abroad
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FTC Fires Warning Shot over Apps that Can Listen to Your TV

What’s the News?

The Federal Trade Commission recently issued warning letters to companies whose mobile applications contain cutting-edge software that can monitor consumers’ television viewing habits. The software, developed by the company Silverpush, utilizes the microphone on the user’s device to detect signals running in the background of television programming and collect information about the user’s programming interests. In its warning letters, the FTC has put app developers on notice that any false or misleading representations pertaining to their use of Silverpush technology could result in an FTC enforcement action.

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Advertising, Media & Entertainment, Promotions, Sweepstakes & Contests, User-Generated Content
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Proclaiming Your (Lack of) Independence: FTC Issues Final Order Against Company for Failing to Disclose Financial Relationship with Reviewers

What’s the News?

The Federal Trade Commission’s final order against a video game marketing company for not disclosing that online reviews for games were posted by paid reviewers shows that companies (i) should monitor their paid reviewers and influencers for proper disclosures and (ii) have a compliance system in place to deal with those who do not follow a company’s guidelines.

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Advertising, Promotions, Sweepstakes & Contests
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These Prices are Healthy?!: GNC Sued for Alleged Fake Pricing

What’s the News?

A recent lawsuit filed against GNC serves as a reminder that companies need to ensure that prices listed as “regular prices” are substantiated.

Background on the Case

The complaint in a class action recently filed against the nutrition and supplements retailer alleges that GNC deceptively lists items on its website as having a deceptive “regular price” and a substantially lower “sales price.” The regular price is either marked down or grayed out in a manner that makes customers believe the sales price is a substantial discount over the price that the items were formerly sold for (see below for an example of the markdowns contained in the complaint). 
 
The complaint claims that these markdowns are deceptive because the listed regular price is not:

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ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.