FEDERAL, STATE & LOCAL LEVEL.
AAF’s Government Affairs Committee is comprised of individuals with a interest and passion for government affairs and legislative issues surrounding the advertising industry. The committee meets monthly via conference call to discuss key legislation, supporting activities, and upcoming events. If you are interested in joining the committee, please contact Clark Rector.
Click the dates below for recent updates and activities.
AAF Supports National
State Privacy Update
Senators Target DTC
Senate Bill Would
Limit Tobacco Ad
AAF Supports National Privacy Law
AAF President Steve Pacheco has joined other association leaders of the Privacy for America coalition to call on Congress to enact federal privacy legislation. Given the recent enactment of the California Consumer Privacy Act (CCPA), and likely consideration of similar measures in other states (see below), a strong federal privacy law that protects all American consumers and provides for a single set of standards for businesses in every state to follow is more important than ever.
The members of Privacy for America support legislation that removes consumer
s burden by creating a standard of clear and enforceable requirements for businesses to collect and use data responsibility, better inform consumers how their data is being used and outlaw harmful data practices.
Legislation should make plain what data uses are forbidden. For example, companies should not be allowed to use someone’s personal information, unless specifically permitted by federal or state law, to deny them a job, credit, insurance or health care.
Similarly, the most sensitive types of personal information—such as medical, financial or biometric information—must not be used without the consumer’s explicit permission.
Companies should be barred from sharing a consumer’s personal information with third parties, unless they have enforceable contracts ensuring the data will be secured and used lawfully.
To insure that regulators have the necessary resources to investigate and punish bad actors, Privacy for America supports the creation of a new Data Protection Bureau at the Federal Trade Commission, including additional staff and resources to fulfill the mission.
The letter is timely as the Senate Commerce Committee is said to be planning a December 4, hearing on privacy and data issues. In addition, Senate Democrats recently released principles for a privacy and data protection framework.
State Privacy Update
Not all potential action is at the federal level. AAF has heard reports of possible data and privacy legislation in Maryland, New Jersey, New Mexico, New York, Oregon and Washington during the 2020 legislative sessions. Other states are likely to join the list.
In October, California Governor Gavin Newsom (D) signed into law a measure requiring “data brokers” to register with the state attorney general. The measure is an amendment to the CCPA. AAF and our industry partners wrote to the governor opposing the bill because we believe the definition of data broker is so broad that it would include businesses conducting routine activities such as analytics and fraud detection, resulting in numerous problems for consumers, the attorney general and businesses.
California Attorney General Xavier Becerra (D) has announced a series of public forums across the state the week of December 2, to take public comment on the regulation released to enforce the CCPA.
The AAF supported Digital Advertising Alliance (DAA) has announced a cross-industry tool for publishers, brands, agencies and adtech in the digital advertising supply chain to provide consumers a mechanism to opt out under the California Consumer Privacy Act.
The DAA tool enables publishers to display a CCPA-mandated text link and a unique icon to California users. Clicking on the link directs users to publisher information and options, including access to the CCPA Opt-Out Tool, if third parties collect and sell data from the property.
The CCPA Opt-Out Tool, consistent with the existing DAA Choice Tool, gives consumers broader privacy control than required under the CCPA by allowing them to opt out of the sale of personal information across all of the DAA participating companies integrated into the new tool from a single website.
AAF Plans Privacy Webinar
The AAF will be hosting a webinar on December 9 to provide members with more information on privacy issues, including:
- the forthcoming California Consumer Privacy Act as well as other state laws that have been enacted
- the prospects for a pre-emptive federal privacy law as enveloped in the Privacy for America initiative, and a
- review of political ad transparency initiatives, namely the DAA About Political Ads program, with tips on how to implement as campaign season for the 2020 Election begins.
The 60-minute webinar will discuss the current state of regulation/self-regulation—and how marketing data users in advertising need to be prepared.
The webinar will be December 9, at 2:00 pm Eastern (1:00 pm Central, 12:00 noon Mountain and 11:00 am Pacific). Participants can register for the webinar here.
Senators Target DTC Advertising
Senators John Cornyn, R-Texas and Richard Blumenthal, D-Conn., have written legislative language requiring pharmaceutical advertising to include the price of the advertised drug. In the past, they tried unsuccessfully to attach the language to an omnibus appropriations bill and have indicated they may do so again. AAF is skeptical about the measure on First Amendment grounds, and in part because drug pricing, insurance, subsidies and other factors, are rarely straightforward and the disclosures would unlikely reflect what consumers actually pay for medications.
Senate Bill Would Limit Tobacco Ad Tax Deduction
Senator Jean Shaheen, D-NH has introduced a bill that would deny the tax deductibility of the advertising for E-cigarette and tobacco advertising. AAF opposes the measure because the First Amendment prohibits banning or taxing commercial speech based on the content of the speech. No action has been scheduled on the measure.
AAF Grassroots in Action
AAF grassroots are hard at work representing their members and the advertising industry before state lawmakers. AAF ad clubs in Texas and Florida recently conducted Days in their state capitols. Here are two recent reports.
On Tuesday October 22nd, Kevin Couch, AAF Dallas Government Chair organized the first ever Texas Capitol visit for the AAF District 10 Chapters. Participation from several chapters such as AAF Austin, AAF Corpus Christi, Ad 2 Dallas, AAF San Antonio is what made this day have such a tremendous impact on our efforts to advance our organization with policy makers at the State Capitol.
The days topics were really focused on our National AAF policy stance on the Data Privacy Standards—of which a Texas lawmaker introduced a bill in the previous session to have a “Texas Version” of CCPA. We were successful in making our views known and developing relationships.
There are plans in the works for a strategic conversation with both Republican and Democratic caucuses preceding the next session, and that will have tremendous impact because we will be talking directly to the legislators and their Chiefs of Staff at those meetings!
Kevin Couch, AAF Dallas Government Chair
Members of the AAF’s Fourth District held another successful Advertising Day at the Capitol recently on November 5th in Tallahassee. Over 40 members from across Florida participated in the annual event offering one-on-one meetings with House and Senate members to discuss issues of interest to the advertising community.
Topping their list of concerns was the need to continue the existence and funding for Visit Florida, a public-private partnership dedicated to tourism marketing for the Sunshine State which has been under fire in recent years. Members also lobbied for a new tax rebate program designed to attract film and digital entertainment production in hopes of filling the void created when lawmakers decided to end funding for Florida’s film incentive programs several years ago.
“It’s definitely one of the most important events we hold as a district each year,” said District 4 Gov. Mike Weber. “And I have yet to hear anything but positive comments from our members who give up a day of their time to better understand a day in the life of an elected official.”
Jack Herbert, AAF Fourth District Lobbyist/Government Relations
Coalition Oppose DTC
The California legislature has adjourned for the year, meaning there will be no more opportunities to amend the California Consumer Privacy Act before it goes into effect on January 1, 2020. While this is a California law, it will have a nationwide impact as it has implications for any company that does business in that state.
The CCPA applies to all businesses in California that have gross revenues over $25,000,000; buys, sells or shares the personal information (PI) of 50,000 or more consumer, households, or devices; or derives 50% or more of its annual revenue from selling consumers’ personal information. The bill also grants consumers specific rights, including:
- The right to be informed about a business’ practices regarding a consumers’ personal information and of the specific PI held by the business
- The right to request that a business or services provider delete any PI held, except in certain circumstances
- The right to direct a business that sells consumers’ PI to no longer sell their PI
- A business cannot discriminate against a consumer for exercising any of these rights.
Many questions about the enforcement of the law will not be answered until the Attorney General issues regulations or guidance for businesses. The Attorney General’s office has released a Standardized Regulatory Impact Assessment which demonstrates the potential scope of the new law.
According to the document the law will cover between 15,643 and 570,066 businesses in California and the costs for businesses to comply with the regulations will be between $467 million and $16.454 billion over the next decade depending on the number of businesses impacted. The report does not consider the impact of the CCPA on businesses outside of California.
Before adjourning, the legislature passed legislation requiring “data brokers” businesses to register with the state Attorney General’s office. Data brokers are defined as businesses that “knowingly collects and sells to third parties the personal information of a consumer with whom the business does not have a direct relationship.”
AAF and our association partners opposed the legislation and have written a letter to California Governor Gavin Newsom asking him to veto it. We are concerned in part that the definition of data brokers is overly broad and may include ad networks and other businesses not normally considered data brokers.
AAF continues to work with other members of Privacy for America to advocate for a federal privacy law that would protect consumers while allowing businesses to engage in responsible online data collection and use.
AAF, Advertising Coalition Oppose DTC Pricing Amendment
The Advertising Coalition, of which AAF is a founding member, sent a letter to the leaders of the Senate Appropriations Committee opposing a proposed amendment to the Labor and Health and Human Services Appropriations bill that would have required wholesale acquisition cost information for prescription drugs to be included in direct-to-consumer advertising of pharmaceuticals. The scheduled committee “mark-up” of the bill was postponed leaving no opportunity for the amendment to be introduced. Committee consideration of the bill has not been rescheduled as of this writing.
Privacy Act Update
Texas Enacts Privacy Law
Federal “Do Not Track”
AAF Supports Adequate
Funding for Census
HHS Requires DTC
California Consumer Privacy Act Update
California legislators continue to consider legislation to implement the California Consumer Privacy Act by the January 1, 2020, deadline. Concurrently, advertising industry representatives are working with lawmakers to ensure the final law and regulations will not unnecessarily hamper businesses ability to responsibly use data to help market products and services to California consumers.
The situation remains fluid with changes occurring on a seemingly daily basis. Legislative leaders hope to have all changes finalized before their summer recess begins on July 12, with final votes occurring when they return in August.
Texas Enacts Privacy Law
Prior to adjourning for the year, the Texas legislature passed legislation that strengthens notification requirements in the event of a data breach affecting sensitive personal information. The new law also creates the Texas Privacy Protection Advisory Council which is charged with studying the privacy laws in Texas and other jurisdictions and making recommendations about prospective changes to Texas law. AAF will monitor the actions of the Council once it has been formed and provide comments and take other action as appropriate.
Federal “Do Not Track” Bill Introduced
Multiple federal privacy bills have been introduced, including a recent one by Sen. Josh Hawley, R-Mo., that would establish a Do Not Track registry for online data collection similar to the Federal Trade Commission’s Do Not Call list which allows people to say they do not want to receive telemarketing calls. The bill would allow consumers to opt out of companies collecting data beyond what is “necessary” for the services to run.
As has been reported in previous newsletters, AAF is supportive of the enactment of a national privacy standard. We joined in a letter to the Federal Trade Commission supporting the concept and have been participating in meetings of the Privacy for America Coalition, consisting of with many allied associations and companies, to flesh out the specifics of what a national privacy law might look like. In general, AAF and our allies support legislation that would
· Protect consumers nationwide
· Establish new prohibitions on certain data practices, including eligibility, discrimination, assisting and facilitating fraud, and sensitive data
· Create a New Data Protection Bureau at the Federal Trade Commission
· Grant enhanced rule-making authority to the FTC
· Ensure responsible advertising practices
· Require strong data security protections, and
· Authorize strict penalties for violations.
AAF will continue to work with our industry members and partners to advocate for a strong national privacy law that protects both consumers and industry.
AAF Supports Adequate Funding for Census
Recognizing that a reliable demographic information about the U.S. population is critical for advertising and business, in addition to governmental representation and operations, the AAF has joined other leading business organizations on a letter to the leadership of the House and Senate Appropriations Committees asking for sufficient funding for the upcoming 2020 census. Accurate information is essential so that advertisers can make informed decisions when allocating marketing resources.
HHS Requires DTC Price Disclosure
The U.S. Department of Health and Human Services has enacted a rule requiring that direct-to-consumer advertising of prescription medications include the whole acquisition cost (WAC or list price). Three pharmaceutical companies and the ANA have challenged the rule on free speech grounds. AAF shares the concerns that compelled speech violates the First Amendment. We also believe that the information is likely to cause confusion since few patients pay the list cost since the majority is covered by insurance or government health programs. The suit seeks a declaratory judgment invalidating the rule, which is due to go into effect in July. No matter the ruling of the initial court, an appeal by the losing side seems likely. AAF will considering weighing in with an amicus brief if and when such action is appropriate.