California Enacts Laws on Bots, Slack Fill

Advertising Law

As the legislative season in California drew to a close, Governor Jerry Brown signed into law bills that will impact advertisers with regard to bots and slack fill.

First up: Bots must now self-identify. SB 1001 banned automated accounts from pretending to be real people “with the intent to mislead” a California resident in order to “incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.”

To avoid liability, bot users must provide a “clear, conspicuous, and reasonably designed” disclosure that the account is automated, although the new law applies only to an “online platform” that has 10 million or more unique monthly visitors from the United States for a majority of months in the prior year.

The Bolstering Online Transparency (BOT) Act takes effect July 1, 2019.

In other legislative news, Governor Brown also signed AB 2632, which amended the state’s Fair Packaging and Labeling Act to create new exemptions—and hopefully decrease the number of consumer class actions being filed over nonfunctional empty space in product packaging.

Packaging sold in a mode of commerce that does not allow the consumer to view or handle the physical container or product—such as online sales—is now exempt from the statute’s requirements. The statutory language was also amended to add the term “substantially,” making it harder for a plaintiff to base a suit solely on the existence of slack fill. Specifically, the law now reads that “nonfunctional slack fill is the empty space in a package that is filled to substantially less than its capacity for reasons other than any one or more of the following.…”

AB 2632 mandated that the “actual size” of the product be depicted on the exterior packaging in a clear and conspicuous disclosure that can appear on any part of the packaging, except the bottom. A “fill line” may also be used by the manufacturer as long as it is clearly and conspicuously depicted and, if the product is subject to settling, represents the minimum amount of expected settling.

The new law took immediate effect.

To read SB 1001, click here.

To read AB 2632, click here.

Why it matters: In addition to the slack fill amendments and the new bot law, Governor Brown also signed into law SB 327, making California the first state to regulate the Internet of Things.



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