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For the Good of Consumers, Ireland’s Alcohol Health Labeling Law Should Be Respected

Consumer Federation of America Supports Consumer Product Safety Commission Against Unwarranted Attacks

Consumer Groups Urge Congress to Support the PAID Act

Florida Student Privacy Bill Bans Educational Apps from Selling Data

Susan Grant to Retire After 15 Years as CFA’s Privacy Advocate

After 15 years with the Consumer Federation of America, long-time consumer advocate Susan Grant will be retiring as CFA’s Privacy Advocate at the end of June.

“We are so grateful to Susan for her incredible career; chock full of protecting consumers, connecting people and groups, and working diligently to make our lives better and safer,” said Janet Domenitz, CFA’s Board Chair and Executive Director of MASSPIRG.

“Susan has been an invaluable member of the CFA staff for so many years and of late has focused her talents on issues surrounding consumer privacy,” said Susan Weinstock, CFA’s CEO. “She has done a great job of working with CFA member organizations as well as other national organizations in pushing consumer privacy laws and rules at the state and federal levels. Consumers across the country and around the world have benefited from Susan’s pursuit of consumer protections throughout her career. While we will miss her, Susan has earned this well-deserved retirement.”

Grant served as CFA’s Director of Consumer Protection and Privacy from 2008 to 2021 and has served as a Senior Fellow focused on privacy advocacy issues from 2022 to June 2023. Grant launched her advocacy career in 1976 at the Consumer Protection Division of the Northwestern Massachusetts District Attorney’s Office. Prior to joining CFA, Grant also held positions at the National Association of Consumer Agency Administrators and National Consumers League.

“After working in a county consumer agency and then at one of CFA’s member organizations, joining the CFA staff was like going to the mothership,” said Grant. “It’s been a great privilege to work for such an influential group and with such smart, dedicated individuals. I’m so pleased that there is a new crop of advocates to carry on CFA’s vital mission.”

For the Good of Consumers, Ireland’s Alcohol Health Labeling Law Should Be Respected

By: Thomas Gremillion, Director of Food Policy

What do international trade agreements have to do with consumer protections? Increasingly, the answer seems to be “too much.”

Recently, the United States joined Mexico and the Dominican Republic in challenging Ireland’s regulation of alcoholic beverage labeling in the World Trade Organization. The new Irish law would require alcoholic beverage labels to disclose calories, the amount in grams of alcohol per serving and per container, and various health warning statements including, most importantly: “There is a direct link between alcohol and fatal cancers.”

For United States trade officials, these labeling rules are an “unlawful trade barrier.” For consumer and public health advocates, they are a template for how to design labels to prevent inadvertent overconsumption and raise awareness of alcohol’s role as the third most important modifiable risk factor for cancer deaths in the U.S.

How did we get here? Trade agreements were once mostly focused on lowering tariffs, or duties, on imports. For decades now, however, “free trade” has come to mean trade that is free from regulatory barriers to imports and foreign investors. No country’s democratic process is immune to the resulting pressure. In the United States, consumers lost the right to country-of-origin labeling (COOL) on beef and pork products after Mexico and Canada challenged the rules in the World Trade Organization. The countries argued that keeping track of what meat came from what animals would be so expensive that the giant meatpacking companies would simply stop buying pigs and cows from across the border. Therefore, the law was an unlawful trade barrier. The WTO’s Appellate Body agreed. After it authorized sanctions, Congress quietly repealed the law.

Ireland’s alcohol labeling law could meet a similar fate, but not if CFA can help it. Last year, CFA asked EU regulators to approve the law despite objections from industry and major alcohol exporters like Italy. More recently, CFA and its allies wrote to Commerce Secretary Gina Raimondo to ask U.S. officials not to interfere in the implementation of sound public health policies abroad, policies that should have been adopted in the United States a long time ago.

Indeed, in 2003, CFA and its allies petitioned federal regulators to require basic information on alcohol labels such as the amount of alcohol in fluid ounces per suggested serving, the number of calories, and ingredients. To this day, labeling requirements remain unchanged, although last spring, in response to a lawsuit filed by CFA and other petitioners, the Treasury Department agreed to issue proposed rules requiring standardized alcohol content, calorie, and allergen disclosures. CFA has yet to receive a response to another petition seeking to update the health warning statement on alcoholic beverages for the first time since 1988.

As with Ireland’s proposed law, a new health warning statement on alcohol in the U.S. should alert consumers to the fact that alcohol causes cancer. More than any other element of Ireland’s law, this cancer warning requirement most bothers the industry, but it is sorely needed. Researchers with the American Institute for Cancer Research (AICR) estimate that alcohol may account for as many as 7,300 breast cancer deaths annually—some 15% of all such deaths. Yet just 24.6% of women surveyed in the U.S. think that “drinking alcoholic beverages increases a woman’s chances of getting breast cancer.”

Such a gap between the harms associated with a product, and the awareness of those harms, provides fertile ground for educational policies to improve public health. Ireland is poised to take advantage. Let’s hope U.S. trade officials get out of the way!

Consumer Federation of America Supports Consumer Product Safety Commission Against Unwarranted Attacks

By: Courtney Griffin, Director of Consumer Product Safety

Attacks from regulated industries and some lawmakers are threatening the important work of the Consumer Product Safety Commission (CPSC).  The attacks against the CPSC are consistent with other efforts to weaken the federal agencies that protect consumers and workers.  CFA, with its long history of fighting for consumer protections, supports the CPSC and its critical safety mission.

Established in 1972, the CPSC’s sole mission is to “save lives and keep families safe by reducing the unreasonable risk of injuries and deaths associated with consumer products.”  So, while the CPCS is a small agency, its jurisdiction includes 15,000 types of consumer products.  To accomplish its critical work, CPSC issues and enforces mandatory standards, bans dangerous products for which no feasible standard is possible, obtains recalls of dangerous products, researches product hazards, develops voluntary standards with other groups including businesses, and educates consumers.

The CPSC’s work is important to the safety of all consumers and, in the five decades since its creation, the CPSC has reduced death and injuries from many products.  However, its focus on children’s safety is one of the most significant features of the CPSC’s work.  For example, from 1973 to 2019, crib fatalities decreased by nearly 80%, in part because of the CPSC’s important work.  The CPSC’s mandatory safety standard for cribs went into effect in 2011.  Similarly, from 1972 to 2020, pediatric poisoning for all children decreased 80% and for children under 5, decreased 83%.  This year the CPSC finalized a rule for clothing storage units (CSUs) that will protect children from tip-over-related deaths and injuries. From January 2000 through April 2022, CPSC was aware of 234 total fatalities resulting from CSUs, including 199 child fatalities.

The CPSC has also been active in announcing the recalls of dangerous products.  For example, in January 2023 the CPSC reannounced Fisher-Price’s recall of 4.7 million Rock n’ Play sleepers because the product has been linked to approximately 100 infant deaths.  In June 2023, the CPSC reissued a statement urging consumers to stop using certain recalled Boppy newborn loungers that have been linked to multiple infant deaths.  The Commission has continued to seek information from Meta about the issue of dangerous recalled consumer products, such as the Rock n’ Play sleeper and Boppy newborn lounger, sold on Facebook Marketplace.

CFA strongly believes that consumers deserve a marketplace that is just and transparent. To this end, the CPSC’s work is critical to the health and safety of American consumers.  CFA supports the CPSC’s vital mission and its important work against efforts to undermine its authority.  To support the CPSC in its mission to protect consumers from dangerous products, individuals and organizations should:

• Urge their elected officials to support the CPSC in its critical mission to make the marketplace more consumer driven. Encourage their elected officials to protect the CPSC from efforts to undermine its authority to keep consumers safe.  Let their elected officials know that consumers deserve timely information about the potential hazards in their homes.
• Exercise their rights and participate in agency rulemaking on regulations.
• Report complaints about harm or potential harm from unsafe consumer products at gov. This website can also be used to determine whether anyone has already reported injuries associated with a particular consumer product.
• Search reports and recalls/repairs of unsafe or potentially unsafe consumer products.
• Review CPSC’s safety education materials.
• Review CPSC’s injury statistics and technical reports.
• Learn about the various facets of CPSC’s work or contact the CPSC’s Consumer Ombudsman, who is dedicated to helping the public understand how the CPSC works.
• Learn more about the work of groups that have successfully advocated for safer consumer products, such as Kids in Danger (KID), Parents for Window Blind Safety, and Parents Against Tip-Overs.

The attacks on the CPSC reflect the broader goal of regulated industries and some lawmakers to undermine the authority of federal agencies whose mission it is to protect consumers. As CFA continues to advocate for a marketplace that is just and transparent, trust that we will continue to defend this critical consumer protection agency.

Consumer Groups Urge Congress to Support the PAID Act

Earlier this month Representatives Bonnie Watson Coleman (NJ-12), Rashida Tlaib (MI-12), and Mark Takano (CA-39) reintroduced the Prohibit Auto Insurance Discrimination (PAID) Act, which would ensure insurance companies use only driving-related factors when determining car insurance rates and eligibility. Nineteen consumer groups, including the Consumer Federation of America, sent a letter urging other members of Congress to support and pass this critical legislation.

Nearly every state in the country mandates the purchase of auto insurance. Currently, auto insurance companies can use these discriminatory socio-economic factors to determine a driver’s insurance rate and eligibility:

1. credit score, credit-based insurance score, or consumer report,
2. education level,
3. job or occupation, as well as their employment status,
4. home ownership status,
5. gender and marital status,
6. prior insurance coverage and previous insurers, and
7. home ZIP code or census tract.

“Many consumers are charged hundreds or even thousands of dollars more based on these variables, even though they aren’t related to driving,” said Michael DeLong, CFA’s Research and Advocacy Associate. “Your auto insurance premium should be based on your driving behavior, not your credit score or your job or whether you graduated from college.”

If the PAID Act becomes law, it would “further require all underwriting rules and rate filings by auto insurers to be made publicly available,” and would “require insurers to submit regular information to the Federal Trade Commission to demonstrate that their marketing, underwriting, rating, claims handling, and fraud investigations, and any models or algorithms used in these programs, do not have a disparate impact on consumers based on their race, color, national or ethnic origin, religion, sexual orientation, disability, or gender identity or expression.”

The organizations wrote that if passed, the PAID Act “should also serve as a model for state legislators and regulators who are serious about reducing unfair discrimination in auto insurance markets.”

“The PAID Act would strike a blow for consumers by greatly reducing auto insurance premiums and ensuring that the process is fair and transparent.” said DeLong. “We urge Congress to put consumers first and pass this bill.”

Florida Student Privacy Bill Bans Educational Apps from Selling Data

By: R.J. Cross, Director of Don’t Sell My Data Campaign, PIRG; and Bess Pierre, Intern, Don’t Sell My Data Campaign

Earlier this month, the Florida state legislature passed a new student privacy bill – the Student Online Personal Information Protection Act  – in an effort to bolster student data privacy protections at school.

How does the Florida student privacy bill protect kids? 

Many sites and apps students use for school include secretive technology that harvests student data and sells it to third parties. A 2022 study by Human Rights Watch found that 90% of educational apps do just this – turning a tool for learning into a tool for exploiting minors’ information for commercial gain, usually unbeknownst to students, teachers, and parents alike.

Florida’s bill bans educational platforms from gathering any more information from students than is reasonably necessary to deliver the primary service of being a learning tool. It also bans companies from using student data for any non-educational purposes. This means student data cannot be sold to third parties or used for targeted advertising.

Requiring companies to only gather the data that’s necessary to deliver the service a consumer is expecting to get, and using it for only that purpose, is a principle broadly known as data minimization. Data minimization is a good approach to data privacy. It’s encouraging to see Florida implement it in this law.

How effective is the new Florida student privacy bill?

The bill is a good step towards protecting kids online. There are some open questions left – like how well enforcement will work, and what companies and products the bill will apply to. The Florida Department of Legal Affairs is currently the only enforcer, which is less ideal than if consumers were able to sue offending companies themselves. The bill also only applies to platforms specifically designed for  K-12 education, leaving out a lot of other websites, apps and online tools students interact with on a daily basis.

Still, the bill is a big step forward for student privacy, while Congress considers its next steps.

What happens next? 

The bill goes into effect on July 1, 2023, and the State Board of Education may adopt rules to improve the law’s implementation at a later date.

Meanwhile, however, companies outside the EdTech space will largely continue to be able to collect, sell and use all of our data however they want. It’s essential for all companies to minimize collection for all consumers, not just children. Businesses should also take responsibility for respecting consumer privacy even before policymakers pass strong regulations.

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A fellow consumer advocate recently showed me how he could use an AI program on his laptop to draft privacy legislation. The result was instantaneous and quite impressive. I don’t know what sources the program used, but it must have searched for legislative language that someone advocating on behalf of consumers would be likely to use and stitched together a decent legal framework for privacy protection. It was a good example of how AI can research, reason, and produce decent results for users. There are many applications of AI that can benefit consumers, from improving automated responses to their questions and complaints to enhancing their shopping experiences.

But the hearing began with another, more sobering example provided by Senator Richard Blumenthal. He played a recording that sounded like his voice, explaining concerns about AI, including that it could be used to impersonate someone. And indeed, it was impersonating him! It was not really him speaking, and he did not write what was said. Instead, his staff used an AI program to mimic his voice and the remarks were based on things he had previously said about AI. And here is another crucial point: since AI can learn, it might be able to accurately guess what he would have said even if he had not already voiced those concerns.

Or, if used by a malicious actor, AI could be used to impersonate Senator Blumenthal and say things that do not represent his views at all. How would people know it wasn’t him? Would it be sufficient to simply label things as AI-generated? I don’t think that would be particularly meaningful to people. Do we need a new federal agency to regulate the use of AI, as Senator Michael Bennet has proposed? We already have the Federal Trade Commission, which could regulate the commercial use of AI, though that wouldn’t necessarily address issues such as the potential for politicians to use AI in misleading ways. The White House is getting involved – the President’s Council of Advisors on Science and Technology has created a working group on generative AI, which is a great step, but regrettably it has no representatives from consumer organizations.

It’s already difficult for consumers to be sure who they’re dealing with when they answer the phone or see an offer for something online. Last year, imposter scams in which consumers were approached by someone falsely claiming to be a trusted business, government agency, other entity or individual were the second most common subject of complaints reported to the Federal Trade Commission. Even legitimate companies and organizations may be tempted to use this technology in ways that are unfair and abusive. Plus, the potential to mislead and manipulate consumers politically, as we saw during the last Presidential election, is even greater with AI.

I predict that AI will present consumers, consumer advocates and law enforcement agencies with huge challenges. The solution is not yet clear, but it’s obvious that we need to explore legislative or regulatory approaches to this issue. This would be a good subject for an FTC “town hall,” perhaps pulling in other relevant agencies that deal with consumer issues, and of course consumer organizations. Use of artificial intelligence is growing, and consumer advocates, Congress, regulatory agencies, and businesses must be prepared to handle any issues that may arise from the vast number of uses of this technology.

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The bill, introduced by House Financial Services Committee Chair, Rep. Patrick McHenry (R-N.C.), is scheduled for mark-up and vote tomorrow in the committee. Consumer groups are calling on committee members to vote against this bill, which would be a major setback for consumer data privacy protections.

“This bill is being sold as a way to strengthen data privacy protection laws, but in reality, it will do much more harm than good. Members of Congress should reject this proposal,” said Ed Mierzwinski, U.S. PIRG Senior Director for Federal Consumer Programs. 

H.R. 1165 would override or “preempt” any state law regulating financial institutions in their “collection or disclosure of personal information.” This could include laws such as the California Financial Information Privacy Act, as well as data breach notification laws, which all 50 states have adopted. 

More shockingly, since the term “financial institutions” under the Gramm-Leach-Bliley Act (GLBA) covers more than just banks – it extends to credit bureaus, debt collectors, auto dealers, travel agents, and many other types of businesses. H.R.1165 could nullify state privacy law governing these companies, including laws in half the states that regulate state credit reporting. 

“The potential scope of preemption by H.R. 1165 is breathtaking,” noted Chi Chi Wu, attorney at the National Consumer Law Center.

One type of state law that could be preempted is medical debt laws, passed to protect patients against these debts showing up on their credit reports and lowering their credit scores. Maine and Texas have these laws, and bills have been introduced in Colorado and North Carolina.  

“Millions of consumers are burdened by medical debts on their credit reports,” stated Wu. “States are in the vanguard of trying to protect their citizens from the unfair impact of these bills – no one should have their credit ruined because they got sick.”

Bill proponents in Congress, backed by the fintech sector, argue that the GLBA is outdated and needs updating in response to burgeoning new uses of financial data and widespread problems with data privacy. But, while consumer advocates agree that GBLA needs strengthening, they say this bill would actually be worse than the status quo.

“This bill largely fails to offer new meaningful protections for consumers,” said Ruth Susswein, Consumer Action’s Director of Consumer Protection. “Instead it would substitute a weaker framework, roll back stronger state laws, and leave consumers worse off than they are now.”

The bill also fails to address the need for a private right of action or remedy for harmed consumers. Currently, many state laws provide some form of private remedy for consumers to seek redress when their privacy rights are violated. These laws are especially critical for consumers seeking protection, as GLBA lacks a private remedy mechanism.

“This bill’s failure to strengthen the rights to private action and its preemption of state private remedies, further strips consumers of their rights and makes it nearly impossible for them to hold companies accountable when they break the law,” said Emily Peterson-Cassin, Digital Rights Advocate with Public Citizen. ”A right without any remedy is largely meaningless to the millions of consumers whose lives are routinely impacted by widespread misuse of their private information.”

Despite these dangers, the House Financial Service Committee Chair is determined to move the bill for a vote, essentially arguing that federal updates are necessary and that state pre-emption is the necessary trade off. But, consumer groups say this is a false choice.

“Congress doesn’t need to choose between total state preemption and a federal framework for data privacy. Recently enacted bipartisan laws have struck a good balance between the two; the same can be achieved with data privacy,” said Mark Hays, Senior Policy Analyst with Americans for Financial Reform and Demand Progress. “Pushing this bill as is right now ultimately benefits primarily the finance and tech industries – much more can and should be achieved for consumers.”

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Introduced by Senate Banking Committee Chairman Sherrod Brown (D-OH), Sen. Bob Casey (D-PA) and Sen. Chris Van Hollen (D-MD), this bill would prohibit shadow banks and nonbank commercial entities from taking advantage of legal loopholes.

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The coalition, which includes Americans for Financial Reform, Bank Policy Institute, Center for Responsible Lending, Consumer Federation of America, Credit Union National Association, Independent Community Bankers of America, Mid-Size Bank Coalition of America, National Association of Federally-Insured Credit Unions, National Community Reinvestment Coalition, National Consumer Law Center (on behalf of its low-income clients) and U.S. PIRG, stated the following in a letter:

The time is now for Congress to close the ILC loophole before it is further exploited by firms seeking to gain all of the advantages of an FDIC-insured bank charter without the concomitant supervision and regulation that Congress has established for the corporate owners of full-service insured banks. As financial services trades and consumer advocates, we come together to fully support this legislation and look forward to working with the committee to advance this legislation in the future.

Why this matters:

Congress sought to preserve a competitive economy by establishing a strict separation between banking and commerce. The ILC loophole allows commercial entities to undermine the intent of Congress and ignore the protections designed to maintain that separation. This loophole:

• Creates a riskier financial system and less competitive economy;
• Gives major commercial firms – including Big Tech companies – access to sensitive balance and transaction data, adding to their trove of personal and behavioral data; and
• Exempts these nonbanks from many consumer data and privacy protections.

The Senate legislation would eliminate the loophole and strengthen protections for consumers, taxpayers and the financial system.

A short history of industrial loan companies:

Industrial loan companies offer special exemptions for any type of organization to control a full-service FDIC-insured depository institution without being subject to the same consolidated oversight and prudential standards or limitations applied to traditional financial institutions. These charters were established in the early 1900s and have historically been held by small, locally owned institutions.

The Competitive Equality Banking Act excluded ILCs from the definition of a “bank” in the Bank Holding Company Act in 1987. As a result, the size and number of these companies ballooned until, in 2013, the Dodd-Frank Act imposed a temporary moratorium on new ILCs. That moratorium has been lifted.

Additional background:

The coalition, which represents a broad cross-section of regulated banks, credit unions and consumer protection organizations, also supported H.R. 5912, the “Close the ILC Loophole Act” introduced in the House by Congressman Jesús “Chuy” García (D-IL), Stephen Lynch (D-MA), Lance Gooden (R-TX) and Pete Sessions (R-TX). The House bill passed through committee earlier this year.

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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.

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Download CFA and Consumer Action Comment

Download Fairplay Comments

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Read first set of comments here.

Read second set of comments here.

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