IPR, on behalf of children’s groups, files complaints at FTC urging further investigation into Google’s YouTube Kids app and junk food companies

Today, the Institute for Public Representation made two filings at the Federal Trade Commission (FTC) on behalf of its clients the Center for Digital Democracy and the Campaign for a Commercial-Free Childhood. One asks the FTC to investigate over a dozen major food and beverage companies that allow their unhealthy products to be advertised on YouTube Kids app contrary to their self-regulatory pledges. The other supplements a Request for Investigation filed on behalf of the same groups in April 2015 seeking investigation of Google’s deceptive and unfair practices in its YouTube Kids app. IPR students Samantha Rosa and Nick Garcia worked on these filings.

The Request to Investigate Members of the CFBAI

 Eighteen of the largest food and beverage companies (such as Burger King, Coca-Cola, Mars, and Nestle) are members of the self-regulatory Consumer Food and Beverage Advertising Initiative (CFBAI). These companies have pledged not to advertise products to children under age 12 unless they meet certain nutritional standards. The YouTube Kids app is intended for children age 5 and under. Nonetheless, we found hundreds of videos marketing products on the YouTube Kids app that did not meet these standards. In addition to television commercials, we found longer videos endorsing the products and entire channels devoted to brands of cookies or other snacks. The following screenshots are examples of the types of ads we found on YouTube Kids.

pic 2 pic 3Example of a TV Commercial uploaded to YouTube Kids (Reese’s)

pic 1




Example of a Brand Channel on YouTube Kids (Hershey’s)




Example of a product endorsement on YouTube Kids (Nutella, Oreo, Reese’s)






Our clients sent letters to the companies urging they work with Google to remove the ads for their junk food from YouTube Kids.

Supplement to April 2015 Request to Investigate Google

We originally filed a Request for Investigation of YouTube Kids in April 2015 alleging that YouTube Kids mixed commercial and other content in ways that were deceptive and unfair to children. We also argued the app was deceptively marketed to parents in that much of YouTube Kids’ content violated its strict ad policies. Since our Request, Google has updated several aspects of its app, including the app store description, the ad policies, and it has added a Parental Guide.

The supplement argues that Google’s changes do not address our concerns. Google continues to allow extensive advertising, including of food and beverage products, on YouTube Kids (see examples above). These ads can be deceptive to children primarily because it has long been known that children have great difficulty distinguishing between content and advertisements on television and do not understand the purpose of commercials is to promote the sale of a product. These advertisements are likely making their way to YouTube Kids, in part, because of the growing presence of multichannel networks, digital “influencers,” product placement companies, and major advertising and “unboxing” video companies on YouTube and YouTube Kids. Thus, we argue the FTC should expand its investigation of Google to include its relationships with those companies, which have likely contributed to the expansion of commercial offerings on YouTube Kids.

Google’s changes to its ad policy and the addition of its Parental Guide similarly do not address our concerns. Google’s ad policy, which disallows advertisements of food and beverage products on YouTube Kids, now applies only to the 15- and 30-second “pre-roll” ads that run before a video, and not to videos uploaded by users, which themselves can be ads (as shown above). This change fails to take into account the more common form of advertising taking place on YouTube Kids via long-form commercials, product placements, and endorsements, which remain largely deceptive to children.

Further, Google continues to deceive parents into thinking it is a safe environment for their kids. YouTube Kids’ description in the app store claims that it is designed for curious little minds to discover and learn and that its policies are family-friendly. Google also claims that it disallows food and beverage advertisements and that it has a mechanism to remove from YouTube Kids videos containing product placements, which Google itself appears to deem inappropriate for children. However, as the supplement showed, children can readily access an endless number of advertisements. Google’s claims to the contrary thereby deceive parents into thinking this app is safe for children.

Press coverage of the complaints:

New York Times




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IPR Submits Amicus Brief in D.C. Circuit Challenging FERC’s Decision to License the Cove Point LNG Export Facility

On November 20th, the Institute for Public Representation filed an amicus brief in the D.C. Circuit on behalf of seven environmental organizations in EarthReports, Inc. (DBA Patuxent Riverkeepers), Sierra Club, and Chesapeake Climate Action Network v. FERC, Dominion Cove Point LNG, LP, and American Petroleum Institute, Nos. 15-1127 & 15-1205. The brief supported the plaintiffs’ challenge to FERC’s decision to authorize liquid natural gas (LNG) exports from Dominion Energy’s Cove Point facility (Cove Point).

Cove Point, located in Calvert County, Maryland, was originally built as a storage and import facility for LNG. In 2013, Dominion filed an application with FERC for authorization to construct and operate an LNG export terminal at Cove Point, thus changing the project’s original purpose. FERC authorized the construction in 2014, after preparing only an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI) for the project. Plaintiffs challenged FERC ‘s decision to approve the conversion of Cove Point to an export facility without conducting a full analysis of the project’s environmental impacts, in violation of its National Environmental Policy Act (NEPA) obligations.

The amicus brief IPR wrote focused on the indirect environmental impacts of the Cove Point project that FERC’s EA failed to address. Specifically, our amicus brief argues that FERC’s EA was insufficient because it failed to consider the environmental impacts of natural gas development induced by the export facility, despite significant evidence of the connection between the project and the gas reserves in the Marcellus and Utica shale plays. The impacts from this increased development include damage to wildlife habitats, possible ground and surface water pollution, and degradation of air quality. The brief also argues that FERC failed to perform a valid cumulative impacts analysis when it unreasonably limited the geographic scope of the project’s impacts and inaccurately characterized the regulatory context in which cumulative impacts are expected to occur. Additionally, our brief argues that FERC failed to consider the intensity of the project’s impacts within the unique geographic context of the Chesapeake Bay and its watershed, as required by 40 CFR § 1508.27(b)(3).

Plaintiffs and amici contend that FERC’s approval of the Cove Point project without consideration of these impacts amounts to arbitrary and capricious behavior, and that, therefore, the agency’s authorization of the project should be vacated and remanded to FERC for compliance with NEPA. Georgetown Law students Christine Hottinger (L’15) and Jordan Liew (L’16), together with clinical teaching fellows/staff attorneys Justin Gundlach and Sarah Fox, researched and drafted the brief.

IPR student Jordan Liew helped draft this post.

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Federal Court Refuses to Dismiss IPR-Litigated Discrimination Suit Brought by Gestational Surrogate Denied Lactation Breaks

A federal judge in California has refused to dismiss an IPR-litigated discrimination suit against the Los Angeles Airport Marriott in which a longtime employee and gestational surrogate seeks relief for being denied lactation breaks.

The first-of-its-kind ruling concludes that plaintiff Mary Gonzales, who was prevented from taking twice-daily breaks to express breast milk even as other recently pregnant employees were allowed such an accommodation, has successfully stated claims against the hotel under both federal and California law.

“This is big win not only for Mary, but for women throughout California and across the country,” said John Davisson, an IPR student attorney who is working on Gonzales’s case. “This decision makes it clear that gestational surrogates and non-traditional mothers enjoy the same legal protections against pregnancy discrimination as mothers who have infants at home. It’s not up to Marriott to pick and choose.”

Gonzales is a cashier and general accountant at Marriott with a passion for helping individuals and couples struggling with infertility to build their families. In April of 2014, she gave birth to a healthy child pursuant to a surrogacy agreement.

In June of that year, when her pregnancy disability leave ended, Gonzales returned to work at Marriott. Gonzales would express milk at work for about 30 minutes twice a day to provide milk to the child she delivered, to receive personal health benefits of lactation, and ultimately to donate to women who were unable to produce sufficient milk for their own children.

But just a few weeks after returning to her job, Gonzales’s manager gave her 30 days’ warning that she would no longer be allowed to take breaks to express milk. Unlike other recently pregnant employees at Marriott who were permitted paid lactation breaks, Gonzales was told she could only use her lunch period. Gonzales requested to meet with Marriott officials to discuss an accommodation, but Marriott denied that she had any right to the breaks and declined Ms. Gonzales’s offer to bring in a doctor’s note detailing her need for the breaks.

As a result, Gonzales was left with no option but to devote her brief lunch period to expressing milk, instead taking her lunch during her 10-minute morning break. Gonzales suffered clogged ducts, severe breast pain and soreness, blisters, and loss of sleep in order to express milk at night. She was also prevented from having lunch with her colleagues and excluded from midday company social events.

Gonzales, who is jointly represented by IPR and San Francisco Bay Area-based Campins Benham-Baker, LLP, filed suit in the United States District Court for the Central District of California in May alleging discrimination and failure to accommodate under federal and state laws.

Though Marriott attempted to have the suit dismissed, Judge Margaret M. Morrow denied its motion on all counts. Her ruling rejected Marriott’s argument that accommodations for pregnancy-related conditions were only required for mothers who were nursing infant children at home.

“Marriott’s dismissal of the ‘personal health benefits’ of lactation—which it compares to ‘exercising during the workday’—is unfounded,” she added.

Judge Morrow found that “a reasonable jury could conclude that Gonzales was subjected to the treatment she was because Marriott perceived she did not conform to stereotypical views of how women act as it relates to motherhood or child bearing.” With this decision, Judge Morrow rejected Marriott’s claim that its treatment of Ms. Gonzales did not constitute sex discrimination because the “stereotype of legitimate motherhood” is not an actionable sex-based stereotype.

“This case is about preventing employers from denying employees their rightful workplace protections on the basis of their reproductive choices,” said Connor Cory, another Georgetown University student attorney representing Gonzales. “The circumstances of a woman’s pregnancy should have no bearing on her right to be free from sex discrimination or her eligibility for a reasonable accommodation.”

The case is captioned Gonzales v. Marriott International, Inc. and has the case number CV 15-03301 MMM (PJWx). Gonzales’s complaint is available here, and Judge Morrow’s decision can be viewed here.

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IPR Amicus Brief Garners SCOTUS Attention

An amicus brief drafted by the Institute for Public Representation received mention from Justice Breyer last month, during oral argument for the case Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association.

The case dealt with FERC Order 745, which allows for compensation of “demand response” resources—i.e., curtailed electricity use that can be dispatched to help balance electricity supply and demand. At issue in the case is whether FERC overstepped its jurisdictional bounds with the Order, and whether its issuance of the Order was arbitrary and capricious. The final version of Order 745 differed from the original draft: while the original instructed wholesale market administrators to pay for demand response at all hours, the final version said that administrators should only pay for demand response when doing so would yield a net benefit to the wholesale marketplace. This change responded to comments submitted during FERC’s public comment process, which expressed concern about overcompensation of demand response providers. The mechanism FERC designed to identify when demand response would yield a net benefit was dubbed the “Net Benefits Test.” IPR’s amicus brief, written by former IPR Teaching Fellow Justin Gundlach and economist Dr. Charles Cicchetti, explained the role of the Net Benefits Test in the final version of FERC’s Order.

During his argument, Paul Clement—counsel for the Electric Power Supply Association—referenced the Net Benefits Test. Justice Breyer interrupted, asking whether “Cicchetti . . . writes about that in the brief, doesn’t he?” After Clement agreed, Justice Breyer continued, “And so I think that’s the best brief to read on [the Net Benefits Test].” Clement responded, “Yes.” He may have then realized that agreeing that IPR’s Cicchetti amicus brief is the “best brief” may have conceded too much, in that the brief rejected Clement’s clients’ position that FERC’s use of the Net Benefits Test did not save it from being arbitrary and capricious. Clement added that an expert amicus countering the Cicchetti amicus “has the better of the argument,” but Justice Breyer was clear: he promised to closely read IPR’s Cicchetti brief.

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Annual Report for Civil Rights Section

Civil Rights Annual Report 2014-2015

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Honoring Sarah Tran

Sarah Tran, a 2009 magna cum laude graduate of Georgetown and an IPR student, recently received the teacher-of-the-year award from the SMU Law graduating class of 2015.  The class had Sarah during their first semester at law school when she was diagnosed with a reoccurrence of the cancer she first developed while at IPR.  Sarah continued her lectures through Skype from her hospital bed, and weeks later, when she returned to the classroom, received a standing ovation.  Over the next year, Sarah continued teaching more classes, publishing articles, and making presentations at conferences, all while fighting cancer.  She even tried her hardest to finish grading exams in her final days.  Sarah was an extraordinary student her at Georgetown and in IPR and, no surprise, turned out to be an extraordinary professor.


This post was written by Professor Hope Babcock

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IPR Files Amicus Brief in Tenth Circuit to Defend the Endangered Species Act

On April 21, the Institute for Public Representation filed an amicus brief on behalf of forty-two Environmental Law Professors in the case People for Ethical Treatment of Property Owners (PETPO) v. U.S. Fish and Wildlife Service (FWS), supporting the defendant federal government’s Constitutional authority to protect the Utah prairie dog under the Endangered Species Act (ESA). The case is currently on appeal in the 10th Circuit, and concerns PETPO’s challenge to a rule that prescribed when and where individuals can “take” the Utah prairie dog, which is listed as a threatened species under the ESA. Bringing suit in the District of Utah, PETPO argued that because the Utah prairie dog resides only in Utah and has no commercial value, the United States has no authority under the U.S. Constitution to promulgate such a rule. This is not the first time that a group has challenged the ESA on constitutional grounds, but the District of Utah is the first court to find the challenge meritorious.

IPR’s brief contended that the Commerce Clause of the Constitution does indeed provide Congress with the authority to legislate to protect intrastate species like the Utah prairie dog. This is because the ESA protects species by regulating economic activities that substantially affect interstate commerce, which United States v. Lopez, 514 U.S. 549 (1995) established as a valid use of Commerce Clause authority. In addition, the brief relied on both the majority and Justice Scalia’s concurrence in Gonzales v. Raich, 545 U.S. 1 (2005) to argue that the Commerce Clause, working with the Necessary and Proper clause, gave Congress authority to protect intrastate species. Nearly 70 percent of all species listed under the ESA reside in only one state; if Congress could not protect these species the ESA’s scheme would crumble. Georgetown Law student Charissa Morningstar (L’15) researched and drafted the brief, under the supervision of graduate teaching fellow/staff attorney Danny Lutz.

IPR student Charissa Morningstar helped draft this post.

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IPR honored by client for working to limit the runaway expansion of digital billboards

The Institute for Public Representation was honored with an award on April 16th at a reception hosted by Scenic America to commemorate the 50th anniversary of both the Highway Beautification Act and Lady Bird Johnson’s Conference on National Beauty. IPR is representing Scenic America, a national nonprofit organization dedicated to preserving and enhancing the visual character of America’s communities, in Scenic America v. U.S. Department of Transportation. The case, currently on appeal before the D.C. Circuit, challenges a Federal Highway Administration (FHWA) ruling allowing for digital billboards with commercial advertising to blight American highways, despite federal prohibitions under the Highway Beautification Act on flashing, moving, or intermittent lighting on billboards. Georgetown Law students Rosalie Winn (L’15), Jason Yan (L’15), and Jonathan Aronchick (L’15) all researched and drafted the appellate briefing, under the supervision of graduate teaching fellow/staff attorney Danny Lutz.

IPR recently completed briefing on the case, filing a reply brief on March 20, 2015 in response to arguments raised by defendants FHWA and the Outdoor Advertising Association of America. Aronchick helped write the opening brief, and Winn and Yan wrote the reply. Both briefs made the case that FHWA ignored the requirements of the Highway Beautification Act and the Administrative Procedure Act when it capitulated to the demands of the outdoor advertising industry and opened the floodgates on permitting digital billboards.

The case offered a learning opportunity for the students involved to wade through complex and unsettled areas of law, including organizational standing and what distinguishes legislative rules from interpretive rules under the Administrative Procedure Act. The students also learned how to adapt to changes in the law during briefing, as an intervening Supreme Court decision, Perez v. Mortgage Bankers Association, struck down a D.C. Circuit decision that had previously played a role in the lawsuit.

This isn’t the first time IPR has been recognized for its work on digital billboards. In 2010, Scenic America honored former IPR student Cristina Stella (L’10) for drafting a petition to to FHWA for rulemaking.

For more about the lawsuit, visit Scenic America’s website at: http://tinyurl.com/pt9gvhf.

Georgetown Law Students Rosalie Winn and Jason Yan helped draft this post.

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IPR and Professor Levitin to File Supreme Court Amicus Brief in Bank of America v. Caulkett

IPR’s Civil Rights/Public Interest section is working with Georgetown Law Professor Adam J. Levitin to prepare an amicus brief that will be filed with the U.S. Supreme Court in Bank of America v. Caulkett. Professor Levitin’s research on the impact of bankruptcy law on mortgage lending is expected to aid the Court in deciding the case, which has important implications for consumers with wholly underwater second-lien mortgages.

Professor Levitin’s data sources and computations are available in this document, which can be accessed via this URL: http://instituteforpublicrepresentation.org/wp-content/uploads/2015/02/Data-sources-and-computations.pdf.



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IPR and Consumers Union File Comments with the Copyright Office in Support of Unlocking Exemption

Last week IPR helped Consumers Union file comments with the Copyright Office in support of an exemption from the Digital Millennium Copyright Act (DMCA) that would enable consumers to unlock their mobile phones and tablets without risking criminal penalties.

Currently, most wireless carriers lock phones and tablets to their network so that these devices can only be used on one network. In the absence of an exemption, consumers who unlock their own devices may be subject to criminal penalties under the DMCA.

Without a legal right to unlock their devices, consumers must rely on their current carriers to unlock their phones and tablets for them—something carriers often make very inconvenient, even impossible. The proposed exemption would allow consumers unlock their own devices, making it easier to switch carriers and maintain the useful life of  devices.

“Giving consumers the right to unlock their mobile devices would create innovation in the wireless carrier and device marketplaces,” according to the comments. “Imposing DMCA civil and criminal liability on consumers who seek to use their devices on different wireless networks leads to customer lock-in, arbitrary forced purchases of new devices, and the consignment of useful equipment to the scrapheap. Allowing unlocking rebalances the market back in favor of consumers, as they can more easily switch carriers and make choices based on value and service.”

The comments support an unlocking exemption for both mobile phones and tablets since consumers increasingly use them for essentially the same functions such as accessing the Internet or sending and receiving text messages and emails. An unlocking exemption covering both mobile phones and tablets would accurately reflect the growing functional equivalence of these devices in the minds of consumers.

Now that proponents have filed their comments in support of various DMCA exemptions, opponents of the proposed exemptions will have a chance to file comments in opposition by March 27th. Then, supporters of exemptions will have an opportunity to file reply comments by May 1st before the Copyright Office issues its final rule.

Georgetown Law Student Maggie Thomas helped draft this post.

DMCA Exemption for Unlocking Mobile Handsets

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