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David Klein

Businesses Continue to Violate PPE Advertising Regulations

by David Klein

As the Covid-19 pandemic swept across the world, businesses rushed to satisfy the demand for personal protective equipment (“PPE”). The intention was often noble, but sometimes it was opportunistic, and some PPE advertising toed the line of legality. As a result, the U.S. Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”) began investigating businesses that made deceptive or scientifically unsupported PPE claims. Since March 6, 2020, the FDA and FTC have issued sixty-four (64) joint warning letters to businesses that may have violated federal law in their PPE advertising. Given the foregoing risk, businesses must be aware of relevant FDA and FTC regulations before bringing PPE products to market. 

What are the FDA and FTC guidelines for PPE advertising?

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FCC Issues Important Autodialer Ruling

by David Klein

The Federal Communications Commission (“FCC”) recently issued a declaratory ruling examining whether certain peer-to-peer messaging platforms constitute an autodialer for purposes of the Telephone Consumer Protection Act (“TCPA”). Given the growing popularity of the communications technology, the implications of the ruling are likely to be significant. 

What are the implications of the FCC’s autodialer ruling?

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Preparing for the July 1 CCPA Enforcement Deadline

by David Klein

Despite the fact that the California Consumer Privacy Act (“CCPA”) regulations have yet to be finalized, the California Attorney General is prepared to begin CCPA enforcement as of July 1, 2020. In 2018, the CCPA was enacted to create enhanced consumer privacy rights by imposing obligations on how businesses collect, use and share California State resident personal information. Over the past two years, the California State Attorney General has been tinkering with the CCPA regulations in an effort to assist businesses with navigating statutory compliance. Given that the CCPA enforcement deadline is upon us, businesses should now be familiar with the various provisions of the CCPA. 

What are the key provisions of the CCPA?

Overview of CCPA Regulations

Businesses fall within the ambit of the CCPA if they: 1) do business in the State of California; 2) collect California State residents’ personal information; and 3) satisfy at least one of the following thresholds:

  • Have annual gross revenue of over $25 million;
  • Buy, receive, sell or share the personal information of 50,000 or more consumers, households or devices for commercial purposes each year; or 
  • Derive 50% or more of annual revenue from selling consumer personal information. 

Dating back to the passage of the CCPA on June 28, 2018, we have blogged about the CCPA compliance measures that businesses need to take in order to avoid private rights of action and/or investigation by the California State Attorney General. Some key CCPA provisions worth noting include:

  • Notice to Consumers: Businesses that collect California consumer personal information must provide notice prior to or at the point of collection. The purpose of this notice is to inform consumers about the categories of personal information that businesses will collect and the purposes for which the information will be used. Additionally, businesses must notify consumers of their right to opt-out from having their personal information sold to third parties. 
  • Privacy Policies: As stated in the CCPA regulations, “[t]he purpose of the privacy policy is to provide consumers with a comprehensive description of a business’s online and offline practices regarding the collection, use, disclosure, and sale of personal information and of the rights of consumers regarding their personal information.” In order to achieve this level of transparency, businesses must disclose: 1) the categories of personal information collected; 2) the sources from which personal information is collected; and 3) the commercial or business purpose for which the personal information was collected or sold.
  • CCPA Forms: The CCPA affords California consumers the right to: 1) opt-out of the sale of their personal information to third parties; 2) request to know what personal information has been collected about them and how businesses have sold or disclosed that information to third parties; and 3) request that businesses delete personal information that has been collected from/about them. The CCPA regulations provide detailed requirements on how to present, process, respond to and store these requests. 
  • Accessibility: All of the foregoing CCPA-related notices should be accessible to consumers with disabilities and conform to standards included in the Web Content Accessibility Guidelines (“WCAG”), version 2.1, as promulgated by the World Wide Web Consortium (“W3C”). 

CCPA Enforcement 

Businesses that run afoul of the CCPA face both private rights of action and investigation by the California Attorney General’s Office. California consumers can bring private rights of action against businesses for data breaches (and only data breaches) that have exposed their non-encrypted and non-redacted personal information to unauthorized third parties. For private rights of action, statutory damages will amount to the greater of actual damages, or between $100 and $750 per consumer, per incident. Additionally, following the July 1, 2020 CCPA enforcement deadline, the California Attorney General is expected to begin sending notifications of alleged violation to non-compliant businesses. Please note that businesses will be afforded thirty (30) days to cure any instances of non-compliance. Civil penalties levied by the California Attorney General’s office will range from $2,500 for non-intentional violations, up to $7,500 for intentional violations. Notwithstanding the foregoing, considering the amount of time and resources that are being devoted to the COVID-19 pandemic response, it is unclear how the California Attorney General’s Office will prioritize CCPA enforcement. We expect that the Attorney General will initially focus its attention on the largest companies that have misused the most amount of consumer data. 

If you require assistance in connection with CCPA compliance, please email us at info@kleinmoynihan.com, or call us at (646) 713-1684. 

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney. 

Attorney Advertising

Related Blog Posts:

California Data Broker Registration Requirements

Preparing CCPA Privacy Policies Before the July 1 Enforcement Date

CCPA Record Keeping Requirements

TTAB Prohibits Registration of CBD Trademark

by David Klein

Getting a CBD trademark is not as easy as one would think. In 2015, Stanley Brothers Social Enterprises, LLC (“Stanley Brothers”) applied for registration of the mark CW (the “Mark”) with the United States Patent and Trademark Office (“USPTO”), for “hemp oil extracts sold as an integral component of dietary and nutritional supplements.” The USPTO Examining Attorney refused registration of the Mark on the grounds that the use of cannabidiol (“CBD”) in dietary and nutritional supplements was illegal under both the Food, Drug & Cosmetics Act (“FDCA”) and the federal Controlled Substances Act (“CSA”). An Applicant who has received a final refusal from an Examining Attorney may file an appeal with the Trademark Trial and Appeal Board (“TTAB”) within six (6) months from when the final refusal was issued. On appeal, the TTAB agreed with the Examining Attorney that the CBD trademark should not be granted registration.

How can CBD trademarks get registered?

Trademark Refusals for Illegal Goods/Services

Whether CBD trademarks are registerable will depend on how they are used in commerce. Section 907 of the Trademark Manual of Examining Procedure (“TMEP”) dictates that “use of a mark in commerce must be lawful under federal law to be the basis for federal registration.” Prior to the passage of the Farm Bill, on December 20, 2018, all trademarks related to CBD goods/services were rejected for illegal use because CBD was then considered to be an illegal controlled substance. With its passage, the Farm Bill allowed for CBD products containing less than 0.3 percent of tetrahydrocannabinol (“THC”) to be: 1) sold in states that permit it; and 2) shipped across state lines. However, the Farm Bill did preserve the right of the U.S. Food and Drug Administration (“FDA”) to regulate products containing CBD on a federal level. In accordance with its regulatory authority, the FDA has concluded that CBD may still raise lawful-use issues under the FDCA if used in foods or dietary supplements.

Your education on trademark law should begin with a discussion
between you and an experienced trademark attorney.
Scheduling a free consultation with Klein Moynihan Turco is a great place to start.

Registering CBD Trademarks

A quick search of the word CBD in the Trademark Electronic Search System (“TESS”) returns hundreds of results for CBD trademarks that are either pending approval, registered or abandoned. One deciding factor on whether registration will be secured is the description of use included in the applicable trademark application. For example, marks for non-medicated topical skin and body oils containing CBD are much more likely to obtain registration than the subject Stanley Brothers description of “hemp oil extracts sold as an integral component of dietary and nutritional supplements.” 

For guidance, the USPTO’s Examination Guide 1-19 can assist one in learning about the process of registering CBD trademarks. Additionally, consulting with a trademark attorney can help identify important trademark issues and clear the easiest path towards registration. 

If you are looking to register a CBD trademark, please e-mail us at info@kleinmoyihan.com, or call us at (646) 713-1684.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney. 

Attorney Advertising

Related Blog Posts:

Jack Daniels Chewed Up by Trademark Law

Responding to Trademark Office Actions

Tom Brady’s “Tom Terrific” Trademark Application Sacked by Trademark Law

Florida Grants College Athletes Rights of Publicity

by David Klein

On June 12, 2020, Florida Governor Ron DeSantis signed a bill that will allow collegiate athletes in the State to profit from the use of their names, images, and likenesses – their “rights of publicity.” The bill, SB 646 (the “Law”), will go into effect on July 1, 2021. Florida is the latest state to pass legislation that allows collegiate athletes to profit from their rights of publicity. 

What does the new law allow?

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Colorado Tribe Pushes Legal Boundary With New Sports-Betting App

by David Klein

Sky Ute Casino Resort in Colorado is one of the first tribes to offer a mobile app for sports-betting that could face legal challenges.

By Tony Batt

GamblingCompliance (June 15th, 2020) — Although it remains to be seen if the first Native American casino sports-betting app will face legal challenges, the launching of the app by the Sky Ute Casino Resort in Colorado shows that the Indian gaming industry is gravitating toward the mobile sports wagering market. 

“The tribes are very rapidly moving ahead with the implementation of technology not just out of necessity because of the coronavirus but also the fact that all of gaming — commercial gaming along with tribal gaming — has to utilize all available technology to thrive in the future,” said Joe Valandra, a former chief of staff at the National Indian Gaming Commission. 

The Sky Ute Casino Resort is located in the southwestern Colorado town of Ignacio, which has a population of just 697. 

Customers from across Colorado became able to place bets on the Sky Ute Sportsbook app on June 9. 

The launch came seven months after Colorado voters narrowly approved a referendum in November to allow sports betting and effectuate a law passed by the state legislature that allows commercial casinos to offer wagers in their venues and through online platforms. 

Since May 1, six online sportsbooks, including FanDuel and DraftKings, have been licensed by the Colorado Limited Gaming Control Commission and launched mobile sports wagering. 

Although it has not been licensed by state regulators, the compact of the Southern Ute Tribe, which owns the Sky Ute Casino Resort, expressly allows the tribe to offer any form of gaming that is “expressly authorized” in Colorado. 

Still, David Klein, managing partner of New York City law firm of Klein Moynihan Turco, said the Southern Utes would be better served by obtaining a sports-betting license. 

“If you’re making these wagers while you’re on the tribe’s reservation, that would be OK,” Klein said. “But bets in other parts of Colorado would be considered wagers placed with an unlicensed operator.” 

Vic Salerno, president of USBookmaking, the Nevada-based company managing the sports-betting app for the Sky Ute Casino Resort, referred questions to the tribe’s gaming commission. 

The commission did not immediately respond to an email from VIXIO GamblingCompliance. 

Klein cited a 2018 decision by the 9th U.S. Circuit Court of Appeals in California that blocked a tribe from using servers on their reservation to offer online bingo games to customers all over the state. 

Valandra, who is now executive director of the Native American Contractors Association, led efforts by the Ipsay Nation of Santa Ysabel Tribe to launch the Desert Rose online bingo games in California. 

“There are technology parallels between Desert Rose and the sports-betting app in Colorado, but the legal parallels are not exactly the same,” Valandra said. 

For example, the California courts cited the Unlawful Internet Gambling Enforcement Act (UIGEA) of 2006 in striking down the Desert Rose online bingo games that were considered a form of Class II gaming. 

The sports betting offered by the Sky Ute Casino Resort is considered Class III gaming, which can only be offered subject to state approval via a compact. 

Kevin Quigley, one of the attorneys who represented the tribe operating the Desert Rose bingo games, said questions remain about how the Indian Gaming Regulatory Act of 1988 (IGRA), UIGEA and the Wire Act of 19611 

questions remain about how the Indian Gaming Regulatory Act of 1988 (IGRA), UIGEA and the Wire Act of 1961 apply to tribal gaming. 

“Whether a patron can legally access Indian gaming operations from outside the reservation is still to be determined,” Quigley said. 

Tom Foley, a tribal gaming attorney and a former vice chairman of the National Indian Gaming Commission (NIGC), said the federal agency may have to decide if the tribal sports-betting app in Colorado complies with federal law. 

In a March 2001 guidance letter, the NIGC advised that “the use of the internet even though the computer server may be located on Indian lands would constitute off-reservation gaming to the extent any of the players were located off of Indian lands.” 

Since then, UIGEA has been passed by Congress recognizing the authority of states to regulate online gambling within their own borders and excluding any activities otherwise permitted under IGRA from the definition of unlawful internet gambling. 

That was more than a decade before the U.S. Supreme Court ruled in May 2018 that all states can legalize and regulate sports betting. 

“That [NIGC] opinion was guided by the policy of the U.S. Department of Justice which back then considered internet gambling and sports betting to be illegal,” said Penny Coleman, a former general counsel of the NIGC. 

Coleman said she does not expect the NIGC to revise the opinion.

Appellate Court Revives Fax Lawsuit

by David Klein

The United States Court of Appeals for the Seventh Circuit recently reinstated a fax lawsuit that had been dismissed by a trial court in Illinois.  The lawsuit arose from allegations of violation of the Junk Fax Prevention Act (“JFPA”) amendments to the Telephone Consumer Protection Act (“TCPA”), The Appeals Court decision at issue resulted from a complex set of procedural developments at the trial court level. 

Why did the Appeals Court reinstate the fax lawsuit?

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The Complete (Almost) TCPA Checklist for Telemarketers

by David Klein

Telemarketing is sometimes misunderstood, oversimplified, and even viewed negatively. There is much more to it than the unexpected call you get from a strange number while you’re trying to enjoy dinner.

Reaching out to consumers using the phone is often an essential tool for most businesses. Getting the consumer on a phone call to respond to an inquiry or provide the necessary counsel and advice to qualify them for a product or service is not only helpful but, in some cases, a must. 

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