May 14, 2009

Clark Rector Jr., Senior Vice President – Government Affairs

FTC Chairman Says “Opt-In” Always Better

FTC Chairman Jon Leibowitz has gone beyond February comments that warned online advertising companies that they did not have much time to prove that they could “protect people’s privacy.” In an interview last week, Leibowitz said advertisers should have web users’ permission before tracking them on the Internet. “opt-out isn’t illegal necessarily, but I think the better practice is opt-in.” Leibowitz added, “I think some of the more enlightened companies do opt-in. I think a lot of them don’t. I think the better practice is always opt-in.”

Mr. Liebowitz failed to discuss the difficulty most people would have in calibrating the default settings on their computers in order to opt in to tracking. Neither did Chairman Leibowitz point to any harm in anonymous tracking.

There are no FTC hearings or proposals at this time that would mandate opt-in.
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Hearings Delaying on FCC Commissioner Nominations

The Senate Commerce Committee has postponed confirmation hearings for Julius Genachowski to head the FCC. There are indications that Senate Republicans have begun to agree on a second FCC nominee for the Commissioner seat that will go to a Republican. The apparent plan is to reach agreement on all FCC nominees and have simultaneous confirmation hearings.
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AAF, Ad Industry Object to Tobacco Advertising Legislation

The AAF and other advertising associations have sent a letter to the Senate objecting to tobacco legislation scheduled for a markup next week in the Senate Labor Committee.

The ad industry believes tobacco advertising regulation should continue at the FTC rather than the FDA since the FTC has extensive experience in regulating advertising claims. The FDA is an overburdened agency and lacks the advertising regulation experience found at the FTC.

Even more important, the legislation would place what the ad industry believes to be unconstitutional limitations on the ability of tobacco companies to advertise their products to legal audiences. So-called “tombstone” advertising and similar restrictions are violations of the First Amendment guarantees of free speech. Passage and enforcement of this legislation would be likely to open the door to restrictions on other disfavored products in the future. The AAF letter can be found here.
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FDA Nominee Approved in Committee

The Senate Health, Education, Labor and Pensions Committee approved by voice vote the nomination of Margaret A. Hamburg, President Barack Obama’s choice for Commissioner of the Food and Drug Administration. The nomination is expected to receive little opposition when it heads to the Senate floor soon. Dr. Hamburg formerly headed New York City's public health department.
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