Advertising Law

Anette B.

Ninth Circuit says COPPA does not preempt state law claims – Jones v. Google

In this case, a class of children (“Children”), represented by their parents and guardians, filed a lawsuit against Google LLC, YouTube LLC, and several other companies, alleging violations of the Children’s Online Privacy Protection Act (COPPA). The Children claimed that Google used persistent identifiers (via targeted advertising) to collect data and track their online behavior without their consent, which violated state law and COPPA regulations. More specifically, Children are seeking “damages and injunctive relief, asserting only state law claims: invasion of privacy, unjust enrichment, consumer protection violations, and unfair business practices, arising under the constitutional, statutory, and common law of
California, Colorado, Indiana, Massachusetts, New Jersey, and Tennessee. The parties agree that all of the claims allege conduct that would violate COPPA’s requirement that child directed online services give notice and obtain “verifiable parental consent” before collecting persistent identifiers.” Google argued that it wasn’t subject to COPPA because YouTube is a “platform for adults” even though it knows that children use the platform. [Editor’s note: That sure does seem like a stretch of an argument given just how much content directed at children there is on that platform.]

The district court dismissed the case, citing preemption grounds (that is that the state law claims were preempted by COPPA, a federal regulation), but the Ninth Circuit Court of Appeals reversed the dismissal in an amended opinion.

The Court first considered whether COPPA preempted state law claims that were based on the same conduct prohibited by COPPA. The court noted that: “[e]xpress preemption is a question of statutory construction. COPPA’s preemption clause provides: ‘[n]o State or local government may impose any liability . . . that is inconsistent with the treatment of those activities or actions under this section.‘ 15 U.S.C. § 6502(d).” (emphasis in original) The court determined that state laws that supplement or require the same as federal law are not inconsistent and do not stand as an obstacle to Congress’s objectives. Thus, the court concluded that COPPA’s preemption clause does not bar state-law causes of action that are parallel to, or proscribe the same conduct forbidden by, COPPA.

The court also addressed conflict preemption, which occurs when state law conflicts with a federal statute. They found that conflict preemption did not apply in this case because the state law claims did not prevent or frustrate the accomplishment of COPPA’s federal objectives.

As a result, the Ninth Circuit reversed the district court’s dismissal of the case on preemption grounds and remanded it for further consideration of other arguments for dismissal.

Citation: Jones v. Google, LLC, Case No. 21-16281, 9th. Cir. (Jul. 13, 2023)

Disclaimer 1: This summary was initially generated by ChatGPT and then edited to include more specific information by a real human … because, you know, humans are still better than the machine tool.

Disclaimer 2: This is for general information purposes only. This should not be relied upon as formal legal advice. If you have a legal matter that you are concerned with, you should seek out an attorney in your jurisdiction who may be able to advise you of your rights and options.

Anette B.

Email Marketing | Non-Compliance with CAN-SPAM Can Be COSTLY!

So many businesses now rely on email marketing to help generate traffic and revenue. However, failure to comply with the rules set forth in the CAN-SPAM Act could be financially ruinous!

The Federal Trade Commission (“FTC”) explains that the CAN-SPAM Act “is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.”  Just how tough of penalties you ask?  Try penalties up to $40,654, for each separate email, found to be in violation!

Uneducated businesses owners, trying to save a buck by doing email marketing for themselves in lieu of a more traditional professional service, may very well unknowingly send out emails that are in violation of the rules set forth by the CAN-SPAM Act.  In fact, in spite of the connotation that might stem from its name, CAN-SPAM doesn’t just apply to email messages that are sent in bulk – you know, like what you would normally think of as “SPAM.”  The rules under the CAN-SPAM Act apply to ALL commercial email messages that are for the primary purpose of commercial advertisement or promotion of a commercial product or service.  Even emails that are to a former customer, maybe announcing a new product or service, has to comply with the CAN-SPAM Act rules….or else…potential OUTRAGEOUS penalties.  Let’s assume that you email 100 former customers; those emails were not compliant with CAN-SPAM, and assuming maximum penalties would be awarded against you, that would be $4,065,400!  Yes, you read that right.

THE MATH:  100 (non-complying emails to people) x $40,654 (the maximum penalties for violation) = $4,065,400.

Fortunately the rules are not all that difficult to comply with and the FTC’s website has provided a Compliance Guide for Business.  The basics include the following:

  1. Don’t use false or misleading header information.
  2. Don’t use deceptive subject lines.
  3. Identify the message as an advertisement.
  4. Tell recipients where you are located.
  5. Tell recipients how they can opt out from receiving future email from you.
  6. Honor opt-out requests right away.

One other key thing to remember is EVEN IF you rely on someone else to do mass email marketing for you, YOU ARE STILL RESPONSIBLE!  You cannot turn a blind-eye to your advertising communications and expect to go unscathed if those communications do not comply with the law.

It is always a good idea to get a formal legal opinion on these kinds of matters if in doubt. If you are in the state of Arizona, and are seeking assistance with ensuring that your marketing emails, are in compliance with the CAN-SPAM Act, be it ones you created yourself or if you want to double check what your marketing vendor is doing,  Beebe Law, PLLC can help!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.