Advertising Law

SPECIAL FOCUS: Exploring the Ony Decision and Its Impact on False Advertising Claims Involving Scientific Findings

Author: Thomas Morrison

Last year, the Second Circuit issued an opinion in Ony, Inc. v. Cornerstone Therapeutics, Inc., a false advertising case holding that the publication and dissemination of a scientific study that had the effect of touting a company’s product is noncommercial speech and is thereby immune from the false advertising provisions of the Lanham Act.i While the Second Circuit’s ruling is sound, it presents a potential for mischief if expanded to facts beyond those involved in that case.

The Ony Case

The parties in Ony, Inc. v. Cornerstone Therapeutics, Inc. were the leading producers of nonhuman surfactants used for treatment of Respiratory Distress Syndrome (“RDS”), a potentially fatal lung condition afflicting premature infants. Consistent with the manner in which pharmaceutical companies frequently promote their products, defendants Chiesi Pharmaceuticals (the manufacturer) and Cornerstone (its distributor) hired a firm to construct a database analyzing the relative effectiveness of the leading surfactants. Defendants then hired a group of doctors to present the findings at pediatric conferences and to publish them in a peer-reviewed medical journal. In the article, the authors disclosed that the study had been sponsored by Chiesi. Defendants also issued a press release and disseminated the study to hospitals and physicians.

Plaintiff sued for false advertising under the Lanham Act. In its complaint, it identified five allegedly false statements of fact in the article, all of which contributed to the article’s finding that infants suffering from RDS experienced lower mortality rates if treated with defendants’ surfactant than those treated with plaintiff’s. The District Court dismissed the complaint and the Second Circuit affirmed.

The Second Circuit analyzed the issue as one involving the “fact” vs. “opinion” dichotomy under First Amendment defamation law. Extolling the virtues of debate on matters of scientific inquiry, it concluded that:

[A]s a matter of law, statements of scientific conclusions about unsettled matters of scientific debate cannot give rise to liability for damages sounding in defamation. We further conclude that the secondary distribution of excerpts of such an article cannot give rise to liability, so long as the excerpts do not mislead a reader about the conclusions of the article.ii

The court went on to explain its reasoning as follows:

[T]o the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement, those statements are not grounds for a claim of false advertising under the Lanham Act. Here, Ony has alleged false advertising not because any of the data presented were incorrect but because the way they were presented and the conclusions drawn from them were allegedly misleading. Even if the conclusions authors draw from the results of their data could be actionable, such claims would be weakest when, as here, the authors readily disclosed the potential shortcomings of their methodology and their potential conflicts of interest.iii

The court’s dismissal of claims regarding the publication of the study and its presentation at pediatric conferences was clearly correct. The more debatable part of the decision was the court’s conclusion that publication of the findings in a press release, and dissemination of the study as part of defendants’ promotional efforts, were also immune from Lanham Act challenge. The court did, however, attempt to limit its holding to the narrow facts of the case. As it explained:

It is important to note the plaintiff does not allege, nor did it at any point during the proceedings before the district court seek to amend its complaint to allege, that the promotional materials misstated the article’s conclusions. Thus, plaintiff’s objection is not that Chiesi and Cornerstone distorted the article’s findings; rather, its theory is that by presenting accurately the article’s allegedly inaccurate conclusions, Chiesi and Cornerstone committed a separate tort, for which plaintiff is entitled to relief.

We are therefore presented with a much easier case than we would be if a plaintiff alleged that a defendant distorted an article’s findings in its promotional materials.iv

“Test-Based” Advertising Claims

For more than thirty years, Lanham Act courts in multiple circuits have viewed “test-based” advertising claims as “establishment claims.” An establishment claim is a claim that medical, scientific or other studies prove a particular fact or attribute about a product, i.e., that the fact or attribute has been “established” by appropriate studies. E.g.: Procter & Gamble Co. v. Chesebrough-Pond’s Inc. (skin care lotions); Castrol, Inc. v. Quaker State Corp. (motor oil); McNeil-P.P.C., Inc. v. Bristol-Myer Squibb Co. (pain relievers); Castrol, Inc. v. Pennzoil Co. (motor oil); C.B. Fleet Co. v. SmithKline Beecham Consumer Healthcare L.P. (feminine hygiene products); Abbott Laboratories v. Mead Johnson & Co. (infant hydration fluids); BASF v. Old World Trading Co. (antifreeze); Rhone-Poulenc Rorer Pharmaceuticals, Inc. v. Marion Merrell Dow, Inc. (prescription heart drugs); Southland Sod Farms v. Stover Seed Co. (grass seed and sod); Osmose, Inc. v. Timber Products Inspection, Inc. (wood preservatives).v

Establishment claims are subject to a unique standard of proof. Unlike ordinary advertising claims, where the plaintiff has the burden of affirmatively proving that the claim in question is false, a plaintiff challenging an establishment claim need only show that the claim is “not established”—i.e., that the studies relied on by the advertiser are not sufficient or relevant to prove the claim in question. This can be for any number of reasons, such as the studies were not properly conducted, or the advertiser has misconstrued the data from the studies, or the studies are contradicted by other studies. As the Second Circuit explained in Castrol v. Quaker State,vi the falsity of an establishment claim may be proven by showing that the tests in question “were not sufficiently reliable to permit one to conclude with reasonable certainty that they established the proposition.”

“Test-Based” Claims and Published Scientific Studies

Long before the Second Circuit’s decision in Ony, the courts were called upon to examine the applicability of the Lanham Act to the publication of studies in scientific journals and their presentation at scientific conferences. The most thorough analysis of this issue occurred in Gordon & Breach Science Publishers S.A. v. American Institute of Physics.vii Gordon & Breach (“G&B”) published scientific journals. The defendants were two nonprofit physics societies whose journals compete with some of G&B’s journals. In two of their journals, defendants published a survey that ranked various scientific journals in terms of “cost-effectiveness” and “impact” on the scientific literature; in that survey, the defendants’ journals scored near the top, while G&B’s journals ranked near the bottom. After these results were published in defendants’ journals, defendants disseminated copies of the articles via (i) mailings to their members and librarians, (ii) presentations at professional conferences, and (iii) print ads.

Following a lengthy analysis of the commercial speech doctrine, the court concluded that the article itself—i.e., its initial publication in defendants’ journals—“fall[s] decidedly on the noncommercial, fully protected side of the line.”viii The court stated that, even if defendants stood to benefit economically from publication of the survey, its publication in a scientific journal was constitutionally protected speech. On the other hand, the “secondary” use of the article, i.e., its dissemination to librarians and at conventions, was held to be commercial speech subject to Lanham Act regulation. The court likened this activity to General Motors announcing, in a television commercial, that one of its cars had been ranked first by Consumer Reports. As the court explained:

The Consumer Reports article, of course, does not somehow become commercial speech; rather, G.M.’s use of the article is commercial speech. Consequently, G.M. may be sued under the Lanham Act, and Consumer Reports’ testing methodology may become subject to judicial scrutiny to determine whether G.M. “use[d] in commerce” a “false or misleading representation of fact.”ix

Gordon & Breach foreshadowed the Second Circuit’s recent decision in Ony. The original publication of an article in a medical or scientific journal, or its presentation at a medical or scientific gathering, is classic noncommercial speech and cannot, consistent with the First Amendment, give rise to liability under the Lanham Act. However, the Ony decision arguably carves out a broader scope of First Amendment immunity than that recognized in Gordon & Breach. Under Gordon & Breach, once a study is used for purposes of advertising and promotion, the underlying validity of the study—including its methodology—may be attacked under the Lanham Act. But under Ony, so long as the promotional materials do not distort or misstate the study’s conclusion, the promotional materials are also immune from false advertising scrutiny.

The Second Circuit’s opinion does not elaborate on the use of the article in defendants’ promotional materials. But a close reading of the District Court’s opinion indicates that only the study itself was disseminated to doctors and hospitals.x Whether that dissemination was made via a traditional reprint carrier, which typically features the advertiser’s own summary of the findings, is unclear. Nevertheless, the press release would have contained a summary of the study, as opposed to the entire study. So, the Second Circuit was immunizing at least one marketing item (the press release) that went beyond a reprint of the study itself. In this respect, Ony is inconsistent with Gordon & Breach and decisions in other districts which hold that press releases and other promotional materials that summarize medical and scientific studies are commercial speech subject to the Lanham Act. E.g., Genzyme Corp. v. Shire Human Genetic Therapies, Inc.,xi (press release summarizing results of comparative study of two prescription drugs); Bracco Diagnostics Inc. v. Amersham Health, Inc.xii (press release and other materials summarizing article from the New England Journal of Medicine regarding two X-ray systems).

The Eastman Chemical Case

Eastman Chemical Co. v. Plastipure, Inc., a recent case from the Western District of Texas, shows that the courts are likely to apply the Second Circuit’s Ony decision quite narrowly.xiii

Eastman, a spin-off from Eastman Kodak, is a leading manufacturer of a copolyester resin designed for use in rigid plastic products. Sold under the trademark Tritan, Eastman’s product is used to make a vast array of household products, such as water bottles, Tupperware, blenders, etc. Defendant Plastipure is a consulting company that works with plastics manufacturers to help them develop products that are free of chemicals having Estrogenic Activity (“EA”), which is believed to pose health and environmental hazards. Codefendant Certichem, Inc., is a sister company that utilizes a patented in vitro test (known as the “MCF-7 assay”) to determine whether manufactured plastic products are EA-free. Both companies are controlled by Dr. George Bittner, a professor at the University of Texas. The two defendants work in tandem: Certichem tests the clients’ products to determine if they are EA-free, and “certifies” those that are, while Plastipure works with those same clients to develop products that are EA-free and to develop marketing programs touting that attribute.

Dr. Bittner and a colleague published a peer-reviewed paper on the MCF-7 assay test, which explained the test and the results of its testing on hundreds of plastic products, including Eastman’s Tritan. In addition, Plastipure disseminated a brochure targeted to manufacturers of plastic products in which it discussed the health hazards of EA-containing plastics, and touted the company’s ability to help manufacturers develop EA-free products. This brochure included a bar chart in bold red coloring that identified five products made from Tritan, all of which were shown to have EA levels that literally go off the chart. Eastman claimed that the defendants’ MCF-7 assay test could not be extrapolated to the real world of plastic products, had no relation to the presence of EA in products made from Tritan, and that its results were contradicted by Eastman’s own testing that showed that Tritan does not have EA. The case was tried to a jury which returned a verdict in favor of Eastman.

In pre- and post-trial motions for judgment as a matter of law, defendants argued that whether products made with Tritan exhibit EA, and thus pose a health hazard, is a matter of legitimate scientific dispute and is thus immune from Lanham Act scrutiny under Ony. The court readily disposed of this argument. As it stated:

Eastman did not sue Defendants over Dr. Bittner’s scientific paper, which was also published in a peer-reviewed scientific journal. Instead, Eastman’s false advertising claims are based on non-scientific materials, such as an advertising brochure, press releases, and Defendants’ website, none of which included the full context of the scientific paper, and some of which pre-dated the publication of Dr. Bittner’s paper. The “scientific debate” in this case moved from the pages of academic journals to commercial advertisements targeted at consumers.xiv

Not only is this decision clearly correct, it shows that the courts are likely to construe Ony narrowly, consistent with the earlier treatment of scientific publications under the Gordon & Breach doctrine. Dr. Bittner’s published article about his MCF-7 assay, and the health and environmental hazards of EA in plastic products, is protected speech under the First Amendment. But once Dr. Bittner’s views and “research” find their way into advertising and marketing materials, the immunity ends, and these materials became subject to challenge under the Lanham Act.

Why it matters: The Second Circuit’s Ony decision is clearly correct insofar as it deals with articles and studies published in medical or scientific journals or presented at medical and scientific conferences. Likewise, the decisions in Gordon & Breach, Genzyme, Bracco and Eastman Chemical are clearly correct insofar as they deal with advertising and promotional materials that incorporate the results of the underlying studies.

The remaining gray area is the somewhat limited situation where the defendant disseminates the underlying study to its customers and potential customers but adds no statements or comments of its own, other than “we thought you would like to see the enclosed study conducted by Dr. X and recently published in XYZ journal.” Ony suggests that this would constitute protected speech. Gordon & Breach and its progeny suggest that it would not. Which view ultimately prevails must await further developments in this most interesting area of false advertising law.

iOny, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013).

ii720 F.3d at 492.

iiiId. at 498.

ivId. at 499.

vProcter & Gamble Co. v. Chesebrough-Pond’s Inc., 747 F.2d 114, 119 (2d Cir. 1984); Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 63 (2d Cir. 1992); McNeil-P.P.C., Inc. v. Bristol-Myer Squibb Co., 938 F.2d 1544, 1548-49 (2d Cir. 1991); Castrol, Inc. v. Pennzoil Co., 987 F.2d 939, 952 (3d Cir. 1993) (Roth, J., dissenting); C.B. Fleet Co. v. SmithKline Beecham Consumer Healthcare L.P., 131 F.3d 430, 435 (4th Cir. 1997); Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 15 (7th Cir. 1992); BASF v. Old World Trading Co., 41 F.3d 1081, 1090 (7th Cir. 1994); Rhone-Poulenc Rorer Pharmaceuticals, Inc. v. Marion Merrell Dow, Inc., 93 F.3d 511, 514-15 (8th Cir. 1996); Southland Sod Farms v. Stover Seed Co., 108 F.3d 1139 (9th Cir. 1997); Osmose, Inc. v. Timber Products Inspection, Inc., 612 F.3d 1298, 1309 (11th Cir. 2010).

viCastrol v. Quaker State, 977 F.2d at 63.

viiGordon & Breach Science Publishers S.A. v. American Institute of Physics, 859 F.Supp. 1521 (S.D.N.Y. 1994).

viii859 F.Supp. at 1540.

ix859 F.Supp at 1544.

xSee 2012 U.S. Dist. LEXIS 69956, p. 4 and 11 (W.D.N.Y. 2012).

xiGenzyme Corp. v. Shire Human Genetic Therapies, Inc., 906 F. Supp. 2d 9, 14-15 (D. Mass. 2012).

xiiBracco Diagnostics Inc. v. Amersham Health, Inc., 627 F. Supp. 2d 384, 455-9 (D.N.J.).

xiiiEastman Chemical Co. v. Plastipure, Inc., 2013 U.S. Dist. LEXIS 124340 (W.D. Texas, August 30, 2013). This case is being appealed to the Fifth Circuit. Manatt is serving as a consultant to Eastman’s trial counsel for purposes of the appeal.

xiv2013 U.S. Dist. LEXIS at p. 10.

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FTC “Steers Clear” of Deceptive Auto Ads

In conjunction with California authorities, the Federal Trade Commission announced a law enforcement sweep with 10 enforcement actions against deceptive automobile advertisers nationwide.

Dealerships in California, Georgia, Illinois, Massachusetts, Michigan, North Carolina, and Texas ran a variety of ads in violation of Section 5 of the Federal Trade Commission Act, the agency said. Some dealers trumpeted a low purchase price in their marketing and then charged up to $5,000 for a down payment; others ran ads with deceptive promises of low monthly payments but buried details that they were really teaser rates lasting only a few months.

One of the dealerships sent mailers resembling lottery scratch-off tickets. All but three of the 30,000 mailers contained matches for $1,000, $5,000, and $25,000 winners, but the FTC said that not a single consumer who returned their card received their prize from the dealer. In an attempt to legitimize the ads, many of the dealers tried to depend on fleeting disclaimers, according to the agency.

“All of these were attempts to get people in the door with misleading pricing,” explained Jessica Rich, director of the FTC’s Consumer Protection Bureau, at a press conference announcing the actions. She said the agency hoped “Operation Steer Clear” would “put all dealers on notice that these types of deceptive tactics violate the law and can come with significant consequences.”

Nine of the actions have already reached consent orders. No monetary damages were recovered but the dealers agreed not to make future misrepresentations in advertisements for the purchase, financing, or leasing of motor vehicles about any material facts like the cost of leasing or purchasing a vehicle.

Prohibitions on deceptive sweepstakes, giveaways, or other incentives were also included in some cases, as well as a requirement for the dealerships to comply with disclosure requirements pursuant to the Truth in Lending Act and the Consumer Leasing Act.

Litigation is ongoing in the remaining case.

To read the complaints and proposed consent orders, click here.

Why it matters: At the press conference announcing the sweeps, Rich noted that the auto industry generates a large number of consumer complaints, calling it “a priority area” for the agency. She added that “many” other investigations are in the pipeline and cautioned auto dealers to avoid using similar tactics, as the FTC “actively” monitors ads in this area. Recent action from the agency demonstrates its interest: In addition to the current sweep, the FTC announced two settlements last September with dealers over allegedly deceptive price advertisements.

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Body Wash Ad Claims Need to be Cleaned Up, NARB Recommends

Barbed wire imagery and use of the term “harsh” to describe competitors should be discontinued from ads for Dove Deep Moisture Body Wash, the National Advertising Review Board recommended to manufacturer Unilever.

Dial Corporation, maker of competitive body washes, challenged Dove’s ad campaign for the Deep Moisture Body Wash, which included claims like “Even moisturizing body washes can be harsh. New Dove is different,” and depictions of competitive products wrapped in barbed wire or as a ball of steel wool.

One advertisement included the re-enactment of a test purporting to demonstrate a comparison between the effects Dove and a competitor product had on a user’s skin, with a voice-over stating, “Wow, look at the [competitor] body wash paper. If it can strip this paper, imagine what it can do to your skin.”

The self-regulatory body first determined that the “harsh” claims reasonably conveyed a message that some competing body washes are abrasive or would cause noticeable damage to the skin. Dove provided test results that showed the Deep Moisture Body Wash was milder than most body washes, the NARB said, but “the test does not show that the less mild body washes are ‘harsh.’ … The fact that other body washes are less mild than Dove Deep Moisture does not mean they are ‘harsh,’ as that term will reasonably be understood by consumers.”

The barbed wire and steel wool imagery should similarly be discontinued, the NARB said. The images “overstate the actual differences in mildness” between Dove and competitors and “amplif[y] the unsupported message that some competing body washes are abrasive and/or will cause noticeable damages to the skin.”

Turning to the video re-enactment, the panel said that the testing on which the video was based was not sufficiently consumer relevant. Test paper did not accurately simulate the composition of real skin and the body wash was diluted during the testing process, the NARB noted.

Finally, the panel concluded that an establishment claim that Dove Deep Moisture provides “proven best care” was not supported by reliable and well-controlled clinical testing. A corneosurfametry study found Dove’s product to be milder but not in an amount that could be meaningful to consumers, leaving the product “essentially at parity” with the competing body washes that were tested, the NARB said. In addition, a test of the moisturization powers of Dove called for two daily washes when “the vast majority” of consumers take no more than one shower per day.

Although no industry standard exists for the term “best care,” the NARB found it “difficult to imagine” that such a claim could be made without head-to-head testing of competing products – testing which Dove had not conducted.

To read the NARB’s press release about the decision, click here.

Why it matters: The NARB decision tracks the recommendations found in last year’s National Advertising Division findings and reflects the self-regulatory body’s continuing tough stance on comparative advertising claims.

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Court Orders Negative Reviewers Must Be Revealed

In a decision rejecting existing standards for unmasking anonymous Internet communicators, the Virginia Court of Appeals recently held that Yelp must identify seven users who left negative reviews for a carpet-cleaning business.

Of the 75 reviews about Hadeed Carpet Cleaning posted on Yelp, a number were critical. Bob G. from Oklahoma, for example, claimed he was “ripped off,” while Chris H. said his “precious rugs” were shrunk, and Aris P. from New Jersey wrote that the cost of his cleaning was twice the quote and that Hadeed was once bankrupt.

The Alexandria, Va.-based company attempted to match the reviewers’ comments with its customer database and determined that seven of the reviewers were not actual customers.

The carpet cleaning company filed a defamation suit against the seven individuals. To access the identity of the reviewers, Hadeed then issued a subpoena to Yelp, seeking information based on the defendants’ registration information.

Yelp declined to provide the information. A trial court sided with Hadeed and held the social networking site in civil contempt. On appeal, Yelp argued that the First Amendment required that Hadeed establish a showing of merit on both the law and the facts before it could be required to unmask an anonymous user.

But the court disagreed, refusing to quash the subpoena.

While the appellate panel recognized that anonymous speech is protected by the First Amendment and that an “Internet user does not shed his free speech rights at the log-in screen,” it cautioned that the freedom of speech is not absolute – particularly commercial speech.

“If we assume that the Yelp reviews of Hadeed are lawful, then the John Does may remain anonymous,” the court wrote. “But if the reviews are unlawful in that they are defamatory, then the John Does’ veil of anonymity may be pierced, provided certain procedural safeguards are met.”

Yelp turned to seminal decisions on the issue of revealing anonymous Internet postings from New Jersey (Dendrite International, Inc. v. Doe) and Delaware (Doe v. Cahill), but the court declined to adopt the reasoning of the other jurisdictions, noting that various state and federal courts have created nine different “unmasking standards.”

Instead, the appellate panel relied upon Virginia’s procedure for subpoenas to identify anonymous Internet users, Code § 8.01-407.1. Based upon a study and report issued by the Virginia Supreme Court, lawmakers in the Commonwealth of Virginia enacted legislation establishing “a procedure that must be followed when a person files a subpoena seeking information about the identity of an anonymous individual that engaged in Internet communications that are allegedly tortious or illegal.”

The statute “provides the test for uncovering the identity of an anonymous Internet communicator in Virginia,” the court wrote. “We are ‘reluctant to declare legislative acts unconstitutional, and will do so only when the infirmity is clear, palpable, and practically free from doubt.’”

Hadeed completed all of the required steps, the court said. The company filed a copy of the subpoena with the court alleging that “the party requesting the subpoena has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit was filed,” that other efforts to identify the communicators proved fruitless, and that “the identity of the anonymous communicator is important, is centrally needed to advance the claim, relates to a core claim or defense, or is directly and materially relevant to that claim or defense.”

Hadeed made reasonable efforts to identify the anonymous communicators, the court said. Based on the company’s review of its customer database without matching the comments, Hadeed sought the subpoena under a legitimate, good faith belief and presented sufficient evidence that the “reviews are or may be defamatory, if not written by actual customers of Hadeed.”

“Generally, a Yelp review is entitled to First Amendment protection because it is a person’s opinion about a business they patronized,” the court said. “But this general protection relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, in that the reviewer was never a customer of the business, then the review is not an opinion; instead, the review is based on a false statement of fact – that the reviewer is writing his review based on personal experience. And ‘there is no constitutional value in false statements of fact.’”

The court affirmed the ruling, ordering Yelp to comply with the subpoena.

To read the opinion in Yelp v. Hadeed Carpet Cleaning, click here.

Why it matters: One member of the three-judge appellate panel filed a partial dissent in the decision, noting that Hadeed failed to allege that any of the substantive statements were false, instead claiming that the communicators “may not have been customers, and, if they were not, the substantive statements may be tortious.” Calling Hadeed’s argument “self-serving,” Senior Judge James W. Haley Jr. said he would quash the subpoena. “A business subject to critical commentary, commentary here not even claimed to be false in substance, should not be permitted to force the disclosure of the identity of anonymous commentators simply by alleging that those commentators may not be customers because they cannot identify them in their database.” Yelp has indicated that it plans to appeal the decision.

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FTC’s Rich Talks Areas of Concern and Privacy Legislation

Native advertising, the mobile ecosystem, and health claims are areas of interest for Jessica Rich, director of the Federal Trade Commission’s Bureau of Consumer Protection.

In a recent interview with AdWeek, Rich said that “Native advertising will be a huge and continuing theme in our work.” In addition, “I want to make a broader push into mobile, mobile security, mobile payments, making sure we are able to bring mobile investigations, just as we are able to bring brick-and-mortar investigations,” she said. Rich characterized deceptive health claims as “the worst” because “they not only take consumers’ money, but they also could prevent consumers from seeking more effective treatments.”

Privacy protections for consumers are also on Rich’s radar, who said she is “bothered” by targeted ads, particularly health ads, or ads based on the fact she has children. “I don’t personally care about ads for shoes. I sometimes find them annoying, unless there’s a coupon.”

Rich said she doesn’t believe consumers “have any idea” that by providing their information it could be sold and re-sold again, expressing her support for data security legislation. “For a long time, I’ve supported privacy and data security legislation, and I think it’s time,” she told AdWeek.

When asked about recent updates to the Children’s Online Privacy Protection Act, Rich said the changes were “robust” but “there is a lot of debate around teen privacy.” With two teenagers herself – ages 13 and 15 – Rich said she “push[es] privacy choices and parental control over technology,” but “all hell is breaking loose at home.”

In addition to teaching her kids how to clear cookies – which they do “sometimes” – Rich admitted that she also looks on their computers and uses her Facebook page “to spy on my 15-year-old.”

Why it matters: Rich said agreement exists “among many constituencies” that data security legislation would be beneficial. “I am going to do everything I can to support that,” she said.

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