CPSC Unanimously Finalizes Two Lifesaving Window Covering Rules
Consumer Groups Obtain Commitment to Issue Rulemakings on Mandatory Alcohol Labeling
Let’s Curtail Surveillance Advertising
CFA Urges SEC Chair to Prioritize Restoring Health of Public Securities Markets
Junk Fee Blog Series Part 2: The Federal Trade Commission’s Attack on Junk Fees
CPSC Unanimously Finalizes Two Lifesaving Window Covering Rules
After over two decades of persistent advocacy from consumer organizations and parents, the U.S. Consumer Product Safety Commission (CPSC) unanimously finalized two rules to address unsafe accessible cords in both stock and custom window coverings. The new rules were finalized on November 2.
“We petitioned the CPSC in 2014 because of the failure of the voluntary standard to adequately address the hazard posed by accessible window covering cords,” said Rachel Weintraub, CFA’s Legislative Director and General Counsel. “In the last eight years, that failure has only become starker, and the need for a mandatory standard has become even more necessary. We deeply appreciate the promulgation of these critical safety rules and applaud the CPSC for effectively addressing these hazards.”
Both new rules address the risk of strangulation that can cause serious injury and death to children 8-years-old and younger posed by accessible cords of custom and stock window coverings. The new rule addressing custom window coverings will require strong safety standards for the safe operation of custom products and will go into effect 180 days after publication in the Federal Register, which was on November 28, 2022.
The second rule will allow the CPSC take action to protect consumers because it “deems the presence of hazardous operating cords and inner cords on stock window coverings and hazardous inner cords on custom window coverings to be a substantial product hazard.” This rule will go into effect 30 days after publication in the Federal Register, which was on November 28, 2022.
Consumer Groups Obtain Commitment to Issue Rulemakings on Mandatory Alcohol Labeling
On November 21, the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB) agreed to issue proposed rules requiring standardized alcohol content, calorie, and allergen labeling on all beer, wine and distilled spirits products.
This agreement comes after CFA, the Center for Science in the Public Interest, and the National Consumers League sued the TTB last month for failing to act on a 2003 petition the groups filed to require alcohol labeling with the same basic transparency consumers expect for non-alcoholic beverages and food products. The petition specifically called for “listing the amount of alcohol and calories per serving, the percent alcohol by volume, the serving size, the number of standard drinks per container, and other needed information to make fully informed drinking decisions.”
As a result of the lawsuit, the TTB committed to publishing three rulemakings covering mandatory nutrient and alcohol content labeling, mandatory allergen labeling, and mandatory ingredient labeling within the next year.
“Better labeling requirements for alcoholic beverages will allow consumers to make more informed decisions,” said Thomas Gremillion, CFA’s Director of Food Policy. “Consumers have a right to consistent, reliable, and relevant information about the products they buy. For too long, the alcohol industry has kept consumers in the dark, and TTB’s announcement is an important step forward.”
Let’s Curtail Surveillance Advertising
By: Susan Grant, Senior Fellow
On November 21, 2022, Consumer Federation of America and Consumer Action submitted comments to the Federal Trade Commission (FTC) in response to its Advance Notice of Proposed Rulemaking on Commercial Surveillance and Data Security. Consumer Action, a CFA member, has been a champion of underrepresented consumers since 1971.
CFA also joined other groups in comments submitted by Fairplay that specifically focus on children’s privacy. In addition, CFA supports comments in this proceeding from the Electronic Privacy Information Center.
In their comments, CFA and Consumer Action made three main points:
- The FTC should prohibit surveillance advertising, which shows individual consumers advertisements based on inferences about their interests, demographics, and other characteristics drawn from tracking their activities over time and space, because it is inherently unfair and deceptive. This practice uses invisible and invasive techniques to manipulate consumers and rob them of real choice in the marketplace. Furthermore, the benefits of surveillance advertising do not outweigh the harms, and relevant ads can be delivered to consumers in a much less privacy-intrusive manner through contextual advertising, which is when the content of an ad is directly related to the content of the webpage a person is viewing (for instance, delivering an ad for rental cars when someone is looking at information about traveling to a vacation destination).
- It is crucial to set rules for data minimization to protect consumers from excessive collection, use, and sale of their data (including sharing their data in exchange for monetary or other forms of valuable consideration). The absence of such protection can result in a range of harms. The FTC should limit the collection, use and sale of data that can be linked to individual consumers to what is necessary to provide them with the products or services they have requested and for other specific permissible purposes.
- While notice can be useful to consumers and others, the FTC should not over-rely on notice to address the concerns that surveillance advertising raises. Even if notices about companies’ data practices are simplified and standardized, as they should be, not all consumers will read them, and those who do may find it difficult to fully understand the potential impact of these practices. Furthermore, consent to companies’ data practices can be illusory if consumers must agree to obtain the information, goods or services they want.
As CFA and Consumer Action point out, even if notices about data practices are improved and “dark patterns” to manipulate consumers’ choices are prohibited, there will always be asymmetries in the balance of knowledge and power between commercial entities and consumers. In the case of surveillance advertising, which by its very nature is not obvious to consumers, notice and consent cannot substitute for limitations and requirements that protect them from unfair and deceptive acts or practices in the collection, use and sale/sharing of their personal information.
“Except for necessary operational purposes such as fraud control, secondary uses and sharing of consumers’ data should simply be prohibited” said Susan Grant, a Senior Fellow at CFA.
“Consumers must be able to limit or prevent the uncontrolled access to data that is used to create their invisible profiles that can cause irreparable harm when shared or sold,” noted Ruth Susswein, Consumer Action’s Director of Consumer Protection.
CFA Urges SEC Chair to Prioritize Restoring Health of Public Securities Markets
Earlier this month in a letter to Securities and Exchange Commission (SEC) Chair Gary Gensler, CFA voiced strong support for rulemaking that would help restore the health and vitality of public markets and limit the decades-long, excessive growth of private markets.
In the letter, Dylan Bruce, CFA’s Financial Services Counsel, wrote that the “benefits to investors, market integrity, and capital formation of public securities markets are manifest and indisputable,” and that public markets “require registrants to operate with transparency and accountability and have critical safeguards.” By comparison, private markets “carry significantly higher risks for investors, and permit issuers to operate with neither transparency nor accountability.”
To fix these issues, Bruce urged the Commission to update the accredited investor definition, as it would provide “profound benefits for public and private market integrity and retail investor protection.” Bruce also urged the Commission to enhance Form D filing requirements, narrow the ability of companies to evade the Exchange Act’s Section 12(g) registration requirements, and “constrain the unlimited capital raising capacity of Reg. D,” as it is the “main driver of the growth of private markets.”
“Given the unbridled expansion of private markets, we encourage you to prioritize the public/private-related reforms on the Commission’s regulatory agenda,” Bruce wrote. “Without regulatory changes, the excessive growth of private markets is unlikely to slow anytime soon. This unchecked growth will exacerbate the decline of public markets, erode investor protections, and diminish the integrity of our capital markets.”
Junk Fee Blog Series Part 2: The Federal Trade Commission’s Attack on Junk Fees
By: Rachel Gittleman, Financial Services Outreach Manager and Erin Witte, Director of Consumer Protection
Junk fees are everywhere. Auto dealers charge consumers thousands of dollars for add-on products that have little or no value. Hotels charged consumers over $2 billion in “resort fees” in 2015 alone. Rental car companies can tack on numerous separate fees, in addition to the actual rental cost, and often do so after the car has been returned (one such “cleaning fee” is $400). These fees have become an expected way of life for consumers in almost every industry, but the Federal Trade Commission (FTC) has recently announced its plan for a rule to rein in these problematic practices.
The FTC has taken various approaches to junk fees. It regulates the way that telemarketers and third-party online sellers advertise costs, the disclosure of funeral goods and services costs, and the process by which “negative option” marketers obtain consumer consent to be charged for fees and costs. The FTC has also undertaken numerous enforcement actions against many other industry actors, based on its authority to prohibit unfair and deceptive (“UDAP”) conduct in the FTC Act. However, in 2021, the United States Supreme Court issued an opinion which significantly curtailed the FTC’s ability to obtain restitution and injunctive relief in UDAP cases. Although some states have stepped in with legislation or enforcement actions to address these practices, there is no consistent rule about how and whether companies charge fees for goods and services which would align expectations and level the playing field for everyone involved.
The FTC published an advance notice of proposed rulemaking (“ANPRM”) where it proposes both prohibiting certain junk fees altogether and requiring companies to be transparent about the existence and characteristics of fees and charges.
The ANPRM proposed to prohibit businesses from misrepresenting, or failing to disclose clearly and conspicuously:
(a) the total cost of any good or service for sale
(b) the existence of any fees, interest, charges, or other costs that are not reasonably avoidable for any good or service
(c) whether fees, interest, charges, products, or services are optional or required
(d) any material restriction, limitation, or condition concerning any good or service that may result in a mandatory charge in addition to the cost of the good or service or that may diminish the consumer’s use of the good or service, including the amount the consumer receives
(e) that a consumer owes payments for any product or service the consumer did not agree to purchase
(h) the nature or purpose of any fees, interest, charges, or other costs
The ANPRM also proposes to prohibit billing or charging consumers:
(f) for fees, interest, goods, services, or programs without express and informed consent
(g) for fees, interest, goods, services, or programs that have little or no added value to the consumer or that consumers would reasonably assume to be included within the overall advertised price
CFA strongly supports the FTC’s efforts to rein in junk fees, and we are part of a coalition working to support the FTC throughout this important effort.[1] Adopting a rule with these provisions would have several significant benefits for the marketplace:
- Consumers will save money. Event ticket fees, hotel resort fees, and prepaid calling card fees are all prime examples of charges that a consumer would believe are already included in the cost, and which add little or no value to a consumer. These are pure junk fees and prohibiting businesses from charging them will ultimately save consumers money.
- Consumers will be able to comparison shop. It is almost impossible for a consumer to ascertain the actual dollar cost of a vehicle without spending hours at the dealership. Consumers cannot meaningfully comparison shop and choose where to invest their time and money in a purchase if fees and charges are hidden until the end of the transaction. Requiring companies to be up-front and honest will help consumers make better, more realistic choices.
- Businesses will compete on a level playing field. Some event ticket companies support a rule which would require true “all-in pricing,” because it will put them on an even playing field with companies that tempt consumers with lower prices and then hide their fees and charges. Requiring everyone to play by the same rules will give power back to consumers by encouraging competition, ultimately generating lower prices and better products.
[1] If you are interested in signing on to comments to the FTC in support of the ANPR, contact Erin Witte at ewitte@consumerfed.org.
The FTC’s Unfair or Deceptive Fees Trade Regulation Rule can be found by clicking here. Comments are due on January 9, 2023.
Read part 1 of CFA’s Junk Fee Blog Series here.
[1] If you are interested in signing on to comments to the FTC in support of the ANPR, contact Erin Witte at ewitte@consumerfed.org.