Law360

We have been writing this "what to expect in the new year" article for several years now. This year, however, before diving in, we felt a need to say something unrelated to the law.

作者: Jason W. Gordon Casey T. Perrino

We are thankful that we are healthy, safe, and able to work from home. Not everyone can say that. We know many who have suffered in 2020, whether from being stuck at home, furloughs or layoffs, political turmoil, social unrest or mourning loved ones and friends lost to this terrible pandemic.

Our thoughts and support are with those who were challenged in 2020, and will continue to be challenged this year. We hear you, and we stand shoulder to shoulder with you in support - 6 feet apart, of course, and with our masks on.

The COVID-19 pandemic presented all industries and professions with unprecedented obstacles. The struggles to find toilet paper, Clorox wipes and even chicken breast at certain times this year forced us to rethink how we live our lives.

Stay-at-home orders, self-quarantines and the ongoing debate on whether Carole Baskin killed her first husband in the show "Tiger King" forced advertisers, content providers and e-commerce companies to rethink their business models.

Theme parks and movie theaters closed, or opened with limited capacity, limited offerings and constant cleaning. Pharmaceutical companies all raced to create the vaccines we are seeing this month.1 Restaurants redesigned their stores, and partnered with delivery apps.

Content providers released Wonder Woman 1984 in theaters and HBO Max on the same day,2 while conferences and trade shows went entirely virtual. Salons and spas were closed, or offered limited services between plexiglass.

Airlines and hotels extended loyalty program membership into 2021. Many retailers worked to create curbside pickup, touchless delivery and safe stores. And the travel, lodging and restaurant industries are fighting for their lives.

Advertisers rose to meet and overcome these hurdles in a number of creative ways. Some companies furloughed employees, and are now evaluating how to bring those individuals back.

Other brands are debating whether to require all of their employees receive a vaccine before coming back into the office. As we enthusiastically welcome in a new year and breathe a collective sigh of relief that better times are ahead, we reflect on the developments in media and advertising trends we expect to see in 2021.

1. Bring your checkbook when visiting the FTC.

Unsurprisingly, the Federal Trade Commission and the U.S. Food and Drug Administration were active in their enforcement last year.

Hundreds of companies made claims that their products and services treated, cured, prevented or reduced the spread or risk of COVID-19.3 The FTC — alone and in conjunction with the FDA — sent warning letters to companies that were allegedly selling products such as supplements, silicone face brushes and intravenous therapies, with deceptive or scientifically unsupported claims about their ability to treat or cure the virus.4

The FTC also sent warning letters to multilevel marketers regarding health and earnings claims they or their participants were making related to COVID-19.5 The letters advise the companies to cease making these claims and instruct recipients to notify the FTC within 48 hours of the actions taken to address the agency's concerns; otherwise, the FTC warned it would seek injunctions or orders requiring the companies to refund money to consumers.6

Some of these deceptive claims disappeared from the market, but the FTC did file a number of cases, including against a company, Golden Sunrise Nutraceutical Inc., for deceptively advertising a $23,000 treatment plan as a scientifically proven way to treat COVID-19.7

Also, at the FTC's request, a federal court issued a temporary restraining order against 25 counterfeit websites that allegedly played on consumers' pandemic fears to trick them into paying for cleaning products like Clorox that were never delivered.8 Many of these cases are still pending, and we can expect to see additional fines and settlements this year.

These sorts of advertising claims are low hanging fruit for regulators regardless of who is in the White House, but the incoming president-elect will likely shape the FTC into a different entity than the one we saw during the Trump administration.

In particular, we expect a material and significant uptick in enforcement with regard to consumer privacy. This should come as no surprise, given two current FTC commissioners - Democrats Rohit Chopra and Rebecca Kelly Slaughter - previously made vocal statements about the direction they would like to see the FTC take.9

Notably, they have expressed skepticism toward the FTC's general position that consumers benefit from targeted advertising, so long as they have notice and choice about the kind of data that advertisers are sharing, and have argued that consumers do not meaningfully consent to this model of behavioral advertising, which they liken to mass surveillance.10

This is coming to a head in the FTC's recent investigations of various social media platforms and video streaming providers.11 We would not be surprised if the FTC set its sights beyond the bigger platforms that have long served as targets. No matter who the next chairperson is, the balance of power will shift at the FTC and we will undoubtedly see changes.

This is all under a backdrop of the FTC's lack of funding to investigate and enforce its laws.12 Notably, the FTC took in $39 million below what it had expected, during the budget year that ended Sept. 30, and the current budget proposal for 2021 is to keep the FTC's funding at the same level as 2020.13

This will likely hamstring the FTC in its efforts to balance its continued enforcement against companies making unsubstantiated COVID-19-related claims, and the agency's desire to prioritize enforcement against companies it believes are not adequately protective of consumers' privacy.