Notes on Arbitration, Cybersecurity, and "Made in the U.S.A." Labeling
During a session at an ANA 1-Day Conference, a panel of legal experts offered guidance on "Made in the U.S.A." labeling, arbitration, and cybersecurity.
Key Takeaways
"Made in the U.S.A." Labeling
The FTC has made enforcement of "Made in the U.S.A." labeling rules a priority. These rules state that a "Made in the U.S.A" claim can only be made if:
- Final assembly or processing of the product occurs in the United States;
- All significant processing that goes into the product occurs in the United States;
- And all or virtually all ingredients or components of the product are made or sourced in the United States.
Labels need to be accurate as of the time of production, reflecting any changes to the supply chain, even temporary ones.
As evidence of the FTC's prioritization of this matter, it has, since 2021, collected over $16 million in fines for violations of these rules, with those penalized including the likes of Williams-Sonoma.
Arbitration
It is no longer clear that arbitration offers an advantage to defendants over litigation, as the plaintiffs' bar has been finding similarly successful points of leverage (e.g. private rights of action and liquidated damages) in the former as in the latter, particularly as it marshals thousands of arbitrations against single defendants concurrently, extracting extremely steep administration and initiation fees.
Cybersecurity
Panelist Ericka Johnson of TikTok offered several tips for defending against and responding to cybersecurity incidents:
- Look at your competitors to see what provisions they are making for cybersecurity and make sure you at least meet but hopefully exceed their examples.
- Have security controls and incident-response plans in place.
- If an incident does occur, investigate thoroughly. Consider bringing in a third party to conduct the investigation or to validate your own findings.
- Be truthful with the SEC, your customers, and your employees.
CLE Materials
- Session Presentation
- AAA Mass Arbitration
- Complying with the Made in USA Standard
- Dorris v. Danone Waters of Am.
- FTC Issues Rule to Deter Rampant Made in USA Fraud: Federal Trade Commission
- Greenley v. Kochava, Inc.
- Health (and Health-ish) Data and Advertising Under Scrutiny
- JAMS Mass Arbitration Search Results
- Roka Closing Letter from May 17, 2024
- Sensitive Data Processing is in the FTC's Crosshairs
- Uncloaking Dark Patterns: Identifying, Avoiding, and Minimizing Legal Risk
- Unsubscribed! FTC Proposes Substantial Amendments to the Negative Option Rule to Cover All Autorenewals, including B2B Services, and Add New Disclosure, Consent, and Cancellation Requirements
- Voluntary Carbon Market Joint Policy Statement and Principles
Source
"Litigation and Enforcement Round Up for the Advertising Industry." Marisol Mork, partner at Squire Patton Boggs; Kristin Bryan, partner at Squire Patton Boggs; Kyle Dull, senior associate at Squire Patton Boggs; Ericka Johnson, global cybersecurity counsel at TikTok. ANA Advertising Law 1-Day Conference, 6/26/24.