AD-ttorneys@law – June 11, 2021

Alerts / June 11, 2021

In This Issue:

Will COPPA Enter Its Surly Teenage Years as CTOPPA?

Bipartisan bill aims to beef up everyone’s favorite kiddie privacy law


It’s now a truism of our collective pandemic experience that the mass adoption of online services, especially streaming videos and games, has put a strain on … well … everything – bandwidth, the relationship between your three children and their one iPad, every teacher in the universe … to name a few.

Let’s add to the list the country’s communications regulatory apparatus. Think Section 230 and the endless debates about whether to reform it or chuck it out altogether. Add to that the Children’s Online Privacy Protection Act (COPPA), which, as children flooded online to distract themselves from another day stuck inside with their parents, was presumed as inadequate.

Prelude to an Abyss

Complaints about COPPA certainly existed before the pandemic struck. Back in 2019 – when there was no novel coronavirus, remember? – bipartisan chums Sens. Ed Markey (D-Mass.) and Josh Hawley (R-Mo.) introduced legislation to improve the act. With “increased tracking of children and teens online and the collection [of] their personal data,” the authors most notably sought to eliminate the collection of personal and location information “from anyone under 13 without parental consent, and from anyone 13 to 15 years old without the user’s consent.”

They also aimed to ban targeted ads aimed at kids, to ease the strict “actual knowledge” standard for violations into a “constructive knowledge” standard (making it easier to pursue actions against possible violators), and to require companies to “explain the types of personal information collected, how that information is used and disclosed, and the policies for collection of personal information.”

The legislation earned high marks from several public interest groups, including the Campaign for Commercial-Free Children and the Center for Digital Democracy. But the legislation didn’t go anywhere.

The Takeaway

According to Markey’s press release of May 11, “skyrocketing” levels of technological engagement among kids prompted him and new co-sponsor Sen. Bill Cassidy (R-La.) to introduce a very similar proposal.

(Whither Hawley this go-round? This is pure speculation, of course, but consider that this legislation is a bipartisan effort. Cassidy voted to impeach former President Trump and Hawley, well, didn’t, to put it mildly. What a difference a year makes.)

There’s a new name this time — the unimaginative Children and Teens’ Online Privacy Protection Act (CTOPPA). (We would have preferred that Markey and Cassidy might preserve the cozy domesticity of COPPA, but you can’t win them all, can you?)

The proposal matches the previous bill point for point, with the addition of a few more provisions, including a “Digital Marketing Bill of Rights for Teens” to limit “the collection of personal information of teens,” an “eraser button” (?) for parents and kids permitting users “to eliminate personal information from a child or teen when technologically feasible,” and the establishment of a Youth Marketing and Privacy Division at the Federal Trade Commission.

These are significant changes over the 2019 bill. With COVID-19 restrictions easing, we’ll see whether it has the requisite momentum to succeed where its predecessor did not (check out this helpful Washington Post article for a quick lay of the land).

FDA Wants You To Weigh In on Healthy Symbols

Or more precisely, how to think about them in the first place

Regulatory Lifesavers

Three cheers for government regulators!

We’ve said it before, but not enough: Government regulators get a bad rap. Sure, there’s a government regulation for pretty much any business endeavor that exists. Sure, sometimes regulations can go too far (and no, we won’t give examples, because every seemingly ridiculous regulation has an argument to support it. Send your angry emails elsewhere!).

But someone has to do the (mostly thankless) job of keeping everyone else honest. And the work is not easy.

For example, back in 2018, the Food and Drug Administration (FDA) launched its Nutrition Innovation Strategy, which was established to “take a fresh look at what can be done to reduce preventable death and disease related to poor nutrition.”

In Praise of the Exceedingly, Mind-Numbingly Precise

A worthwhile endeavor. But it means getting into the weeds. For instance, back in December of last year, the FDA “issued a proposed rule to revoke the definition and standards of identity for French dressing” and “proposed to revoke the definition and standards of identity for frozen cherry pie.”

Frozen, mind you, not fresh.

Because if someone wants to eat (frozen) cherry pie, then someone’s going to sell it. And if someone’s selling it, someone else has to get into the weeds about what frozen cherry pie is and how we can describe it – and the same for French dressing, and sugar alcohol, and organic dog food, so on, ad infinitum.

We’re lucky to have people who are besotted with such details.

The Takeaway

That isn’t to say the FDA doesn’t tackle the big picture. And that’s where you come in.

The administration is currently launching a “Procedural Notice on Potential Plans to Conduct Research About Use of ‘Healthy’ Symbols on Food Products.” The ultimate research would examine “any potential symbol [that] would represent the nutrient content claim ‘healthy’ and could be used voluntarily by companies on food product labels that meet the ‘healthy’ definition.”

Obviously, the ultimate conclusions of the research would affect anyone who has anything to do with marketing food or dietary supplements or cosmetics or so on, ad infinitum. The FDA seeks “input on ways to enhance the quality, usefulness and clarity of the information to be collected.”

If you’d like to help the FDA figure out how to think about “healthy symbols” by showing off your own personal obsessive concerns, leave the administration a comment right here.

Everywhere Commerce: Top Strategies for Mitigating Risk

Join us virtually from 11 a.m. to 3:30 p.m. ET on June 15 and 16

Recent changes to our way of living have made it clear just how important it is for marketers and retailers to be thinking about the convergence of brand experience and commerce and redefining how consumers shop and interact with brands online. Join us virtually from 11 a.m. to 3:30 p.m. ET on June 15 and 16 for an opportunity to connect with peers and learn from business leaders and regulators as our advertising, digital risk advisory and cybersecurity, and class action defense teams host a mix of engaging panels and breakout sessions that will cover the latest developments, enforcement trends and risk mitigation strategies. Approved for 8.0 hours of CLE credit.

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