Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘advertising’

NYC: products and promotions in commerce must be sensitive to protected groups

The New York City Commission on Human Rights, which not long ago declared an employer or landlord’s use of the term “illegal alien” to be a form of illegal discrimination punishable by a fine of up to $250,000, is now negotiating with companies to obtain legal remedies over promotions and product designs it deems insensitive to protected groups. Among its targets have been fashion lines Prada, Gucci, and Christian Dior, over displays and designs charged with having referenced blackface or “perpetrated Native American stereotypes.” [Vanessa Friedman, New York Times] Robby Soave, Reason:

Prada’s signed agreement with the commission is incredible. The company will put all New York store employees—and company executives in Milan—through racial sensitivity training. Prada will also appoint a diversity and inclusion officer, subject to the commission’s approval. This person will be tasked with “reviewing Prada’s designs before they are sold, advertised or promoted in any way in the United States,” according to the terms of the agreement.

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Pharmaceutical roundup

  • “A federal judge has ordered the nation’s leading pharmacy chains to turn over billions of nationwide prescription records going back 14 years – even as the American Civil Liberties Union and some states attack similar requests by the government as overbroad and an invasion of privacy.” [Daniel Fisher, Legal NewsLine] “Without evidence and unable to make public nuisance argument, Delaware’s opioid claims against Walgreens fail” [same] “Oklahoma Opioid Ruling: Another Instance of Improper Judicial Governance Through Public Nuisance Litigation” [Eric Lasker and Jessica Lu, Washington Legal Foundation, earlier]
  • “Merck v. HHS tests the limits of the federal government’s ability to control and compel commercial speech” [Ilya Shapiro and Dennis Garcia on Cato amicus brief in D.C. Circuit raising First Amendment issues]
  • Let’s try correcting the New York Times on drug pricing. Where to begin? [Molly Ratty, Popehat]
  • “Court Strikes Down NECC Convictions [New England Compounding Center] for Vagueness” [Stephen McConnell, Drug & Device Law]
  • Defense perspective: the ten worst and best prescription drug and medical device decisions of 2019 [Jim Beck, Drug & Device Law]
  • “If there are people out there with no options and they have terrible diseases, we are going to get those drugs to them as fast as feasible.” FDA approving potential breakthrough drugs more speedily [Michelle Fay Cortez and Cristin Flanagan, Bloomberg/MSN; related, Alex Tabarrok]

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Appeals court strikes down Maryland law regulating online political ads

I’m in the Baltimore Sun discussing a bad Maryland law passed in response to the furor over Russian trolling on social media. I wrote about it earlier when a federal district court struck the law down, and now a Fourth Circuit panel, in an opinion by Judge J. Harvie Wilkinson, has agreed that it is unconstitutional. Excerpt:

Exposing foreign governments’ meddling in U.S. politics is a worthy goal. Infringing on First Amendment freedoms is no way to go about it….

[After the law passed] Google immediately stopped hosting political ads in Maryland, a step particularly unhelpful to newcomer candidates, for whom advertising may be one of the few effective ways to boost name recognition. Other platforms, including some Maryland newspapers, also faced a tough position as the effective date of the law drew near. Rather than publish disclosures that might expose to competitors’ eyes confidential information about their ad rates and viewer reach, they might prefer just to immunize themselves by turning down political and issue ads in the future as a category.

Whole thing here.

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“One of the most ridiculous threat letters”

Charles Harder, a lawyer representing Donald Trump, last month “sent what has to be one of the most ridiculous threat letters I’ve seen (and that’s saying something) to CNN promising to sue the company for its ‘biased’ coverage of the possible Trump impeachment process.” Rather than defamation, a frequent cause of action threatened by Trump, the letter invokes the Lanham Act, alleging that the network is engaged in false advertising by describing itself as employing “journalists” who are “fair and balanced.” “Everything about the letter is pretty crazy, especially from a President whose fans like to pretend he he supports free speech.” [Mike Masnick, TechDirt]

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California Consumer Privacy Act: legislate in haste…

The California Consumer Privacy Act, drawn up hastily to avert a threatened ballot initiative, purports to create six new categories of data-related consumer rights, “including the right to know; the right of data portability; the right to deletion; the right to opt-out of data sales; the right to not be discriminated against as a user; and a private right of action for data breaches.” Although sometimes compared to the European GDPR, the two laws are different and compliance with the one enactment (which has been immensely expensive already) does not accomplish compliance with the other. Expect uncertainty, fines, the California specialty of entrepreneurial class-action litigation, and more tilting of compliance cost structures to the benefit of tech companies and advertising intermediaries big enough to afford to spread the high expense over large revenue streams [Alec Stapp, Truth on the Market; more: Al Saikali, Washington Legal Foundation; Petrina McDaniel, Elliot Golding and Keshia Lipscomb, Squire Patton Boggs]

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Claim: this chocolate was made here recently, not in Belgium 93 years ago

The Godiva chocolate company puts “Belgium 1926” on many of its labels and promotional materials, referring to its origins nearly a century ago in Brussels. “Kevin Fahey, of Virginia, argued in a lawsuit filed in D.C. this week that Godiva commits ‘massive fraud’ by suggesting on product labeling and their website that their products are Belgian…. ‘It is important to emphasize that “Belgium 1926” signifies the place and year of the company’s founding. It does not imply that a product purchased today was made in Belgium nearly one hundred years ago,’ the company said in a statement.” A similar lawsuit was dismissed earlier in California. [Andrea Swalec, NBC Washington; Scott MacFarlane]

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One year later, the harms of Europe’s data-privacy law

The European Union’s General Data Protection Regulation (GDPR), which went into effect just over a year ago, has resulted in a broad array of consequences that are expensive, unintended, or both. Alec Stapp reports at Truth on the Market, with more discussion at Marginal Revolution:

GDPR can be thought of as a privacy “bill of rights.” Many of these new rights have come with unintended consequences. If your account gets hacked, the hacker can use the right of access to get all of your data. The right to be forgotten is in conflict with the public’s right to know a bad actor’s history (and many of them are using the right to memory hole their misdeeds). The right to data portability creates another attack vector for hackers to exploit.

Meanwhile, Stapp writes, compliance costs for larger U.S.-based firms alone are headed toward an estimated $150 billion, “Microsoft had 1,600 engineers working on GDPR compliance,” and an estimated 500,000 European organizations have seen fit to register data officers, while the largest advertising intermediaries, such as Google, appear to have improved their relative competitive position compared with smaller outfits. Venture capital investment in Euro start-ups has sagged, some large firms in sectors like gaming and retailing have pulled out of the European market, and as of March more than 1,000 U.S.-based news sites were inaccessible to European readers.

More in Senate testimony from Pinboard founder Maciej Ceglowski via Tyler Cowen:

The plain language of the GDPR is so plainly at odds with the business model of surveillance advertising that contorting the real-time ad brokerages into something resembling compliance has required acrobatics that have left essentially everybody unhappy.

The leading ad networks in the European Union have chosen to respond to the GDPR by stitching together a sort of Frankenstein’s monster of consent,a mechanism whereby a user wishing to visit, say, a weather forecast is first prompted to agree to share data with a consortium of 119 entities, including the aptly named “A Million Ads” network. The user can scroll through this list of intermediaries one by one, or give or withhold consent en bloc, but either way she must wait a further two minutes for the consent collection process to terminate before she is allowed to find out whether or it is going to rain.

This majestically baroque consent mechanism also hinders Europeans from using the privacy preserving features built into their web browsers, or from turning off invasive tracking technologies like third-party cookies,since the mechanism depends on their being present.

For the average EU citizen, therefore, the immediate effect of the GDPR has been to add friction to their internet browsing experience along the lines of the infamous 2011 EU Privacy Directive (“EU cookie law”) that added consent dialogs to nearly every site on the internet.

On proposals to base legislation in the United States on similar ideas, see Roslyn Layton and Pranjal Drall, Libertarianism.org. [cross-posted from Cato at Liberty]

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U.K. bans gender stereotypes in ads

The United Kingdom’s Advertising Standards Authority (ASA) has “instituted a ban on gender stereotypes ‘that are likely to cause harm, or serious or widespread offence.'”

According to the ASA’s overview, setups that will likely be in violation of the law include but are not limited to:

* An ad that depicts a man with his feet up and family members creating mess around a home while a woman is solely responsible for cleaning up the mess.

* An ad that depicts a man or a woman failing to achieve a task specifically because of their gender e.g. a man’s inability to change nappies [diapers]; a woman’s inability to park a car.

* Where an ad features a person with a physique that does not match an ideal stereotypically associated with their gender, the ad should not imply that their physique is a significant reason for them not being successful, for example in their romantic or social lives.

* An ad that seeks to emphasise the contrast between a boy’s stereotypical personality (e.g. daring) with a girl’s stereotypical personality (e.g. caring) needs to be handled with care.

* An ad aimed at new mums which suggests that looking attractive or keeping a home pristine is a priority over other factors such as their emotional wellbeing.

It will not be a defense of a stereotype that it is by and large true — that, for example, persons whose physique departs significantly from social expectations might genuinely face worse average outcomes in their romantic lives.

The rules do allow a few exceptions; for example, it will still be fine for advertisers in Britain to invoke gender stereotypes for purposes of challenging them. [Billy Binion, Reason; update on action against ads for Volkswagen and Philadelphia Cream Cheese]

Happy Independence Day!

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Discrimination law roundup

  • Can a law ban calls to police by the public that are based on stereotyping or bias? Grand Rapids may find out [Scott Greenfield]
  • Courts and EEOC have held that the federal ban on pregnancy discrimination encompasses a ban on discrimination related to abortion [Jon Hyman] Legislative proposal in Ohio, fortunately given little chance of passage, would make anti-vaxxers a protected group under state employment discrimination law [same]
  • “Finally Some Robust Research Into Whether ‘Diversity Training’ Actually Works – Unfortunately It’s Not Very Promising” [Jesse Singal, British Psychological Society Research Digest, earlier]
  • New EEOC employer reporting requirements represent “an order of magnitude increase in the amount of information the government wants” for one recreation management business [Coyote] How are federal agencies doing on civil rights issues in this administration? Federalist Society panel with Gail Heriot, Kenneth Marcus, Theodore Shaw, Timothy Taylor, moderated by Erik Jaffe;
  • When an outcry arose over its partnership decisions, “Paul, Weiss did what every other mainstream institution does today when accused of racial bias: it fell on its sword.” [Heather Mac Donald, City Journal via Eugene Volokh]
  • “Targeted Advertising and Age Discrimination: An Explainer” [Joe Ruckert, On Labor]

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San Francisco law requiring warnings in sugary-drink ads struck down

“A federal appeals court on Thursday blocked a San Francisco law requiring health warnings on advertisements for soda and other sugary drinks in a victory for beverage and retail groups that sued to block the ordinance.” The ruling, by a unanimous 11-member en banc panel of the Ninth Circuit, found that thelaw violates First Amendment rights of commercial speech. [AP/BakersfieldNow; American Beverage Association v. City and County of San Francisco]

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