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In Part Two of this two-part series on the National Association of Attorneys General (NAAG) Fall Consumer Protection Conference, we highlight panelists' discussions on recent deceptive practices (including discussions on privacy, ultra-processed foods, and e-cigarettes), federal student loans, and debt collection. You can read part one of our series here.
Legal Updates – Deceptive Practices
Panelists included Brandon Garod (Senior Assistant Attorney General, New Hampshire Attorney General's Office), Michael Hering (Director Center for Tobacco and Health Policy & Chief Counsel, NAAG), and Abby Cunningham (Assistant Attorney General, West Virginia Attorney General's Office).
Brandon Garod kicked off the panel with an overview of New Hampshire's data privacy statute and the state's Data Privacy Unit, housed within the Consumer Protection and Antitrust Bureau of the New Hampshire AGO. Garod explained that the law applies to (i) controllers and processors of the personal data of at least 35,000 unique New Hampshire consumers or (ii) controllers or processers of personal data of 10,000 unique New Hampshire consumers that derive more than 25% of gross revenue from the sale of personal data. He described that like other state privacy laws, New Hampshire's law gives consumers various rights, including opt out, deletion, and correction rights, and that the law prohibits controllers from processing sensitive data without consumer consent. Garod explained that the law currently provides for a 60-day period to cure alleged violations (if the violation is of the type that can be cured), and that to date, the office has seen universal compliance within that cure period. The notice and cure period requirement will end at the end of the year, and Garod noted it will be interesting to see how enforcement will move forward.
Next, Abby Cunningham overviewed ultra-processed foods (UPFs) legislation. She explained that while there is no universal definition, generally UPFs are products that are made from formulations of ingredients that undergo intensive industrial processing, that typically contain multiple additives (such as preservatives emulsifiers, flavorings, or colorings), and that have little or no use in traditional cooking. She pointed out that UPFs are generally "ready to eat or drink," have long shelf lives, and generally contain high sugar, salt, or fat. She also mentioned that complicated sounding names in ingredients that you don't have in your pantry are an indicator of UPFs -- such as Polysorbate 80. Cunningham further indicated that UPFs generally use eye-catching, colorful packaging, and, as potential examples, pointed to candy, soda, chips, bread, breakfast cereals, protein bars, frozen dinners, electrolyte-containing drinks, and cured meats. She noted the risks of diabetes, obesity, and heart disease from these foods and that "we all have to eat food," so food should be safe.
Cunningham explained that many states, including Arizona, Arkansas, California, Louisiana, Texas, Utah, Virginia, and West Virginia, have passed legislation banning certain additives, regulating ultra-processed foods in schools, or imposing certain labeling requirements. She focused specifically on West Virginia's UPFs legislation, which bans the sale of foods containing any of seven additives on school campuses effective August 1, 2025, and bans the sale of those foods state-wide effective January 1, 2028. She flagged that West Virginia's UPFs legislation is the first to face legal challenge, with the International Association of Color Manufacturers filing a lawsuit alleging that West Virginia's law arbitrarily bans dyes in the state without scientific evidence in violation of the U.S. and West Virginia constitutions.
Michael Hering then discussed e-cigarette developments. He explained that while only 39 Electronic Nicotine Delivery System (ENDS) products and devices are legally authorized by the FDA, state ENDS directories generally contain far more ENDS products, with Oklahoma alone containing 11,609 products as of the date of the conference for example. He noted that these non-federally authorized ENDS products generally use eye catching colors and packaging. Hering further explained that, to combat unauthorized ENDS products, a handful of states have enacted laws requiring manufactures of ENDS to certify the status of their premarket tobacco product applications (PMTAs) in order to be sold in the state. This would have the effect of ridding states' retail shelves of ENDS products that do not comply with the FDA. He described that several of these laws have been challenged as federally preempted, and that through that legislation, a circuit split has arisen regarding whether the state laws are enforceable. In the meantime, he stated the FDA continues to show enforcement discretion.
Federal Student Loans
The panel was moderated by Nathan Blake (Deputy Attorney General, Consumer Protection, Colorado Attorney General's Office) and panelists included Scott Buchanan (Executive Director, Student Loan Servicing Alliance), Betsy Mayotte (President, The Institute of Student Loan Advisors), and Jessica Meyers (D.C. Student Loan Ombudsman).
Panelists overviewed the history of student loans, including the transition from private lending to government lending, and the pause on payments brought on by the pandemic. They further described the SAVE plan, i.e., the proposed income-driven repayment plan for federal student loans that was designed to offer lower monthly payments and prevent unpaid interest from growing, which is currently on hold pending legal challenges. Scott Buchanan noted the complexities of loans when used for for-profit education as opposed to traditional education and urged states to look at other lending models that meet the needs of today's borrowers, and work with people in the student loan ecosystem like servicers to help understand the marketplace. Betsy Mayotte similarly urged AGs to provide oversight and education to consumers on responsible lending and their resources in the student loan space.
Debt Collection Lawsuits
The panel was moderated by Beth Blackston (Illinois Attorney General's Office) and panelists included Don Maurice (Outside Counsel, Receivables Management Association International) and Erika J. Rickard (Director, Courts and Communities, The Pew Charitable Trusts).
Don Maurice began the panel by discussing recent activity at the state and federal level in terms of debt collection (e.g., DC and Massachusetts revamped their debt collection laws and New York has enacted consumer credit fairness legislation). He also explained that standards are being developed for debt collection outside of the credit card context — i.e., debt collection standards for retail installment sales contracts, mortgages, etc. Maurice indicated that the debt collection industry has been widely criticized in part because consumers are unaware of what occurs during debt collection, particularly when a suit is filed against them. Erika Rickard seconded this and provided statistics regarding debt collection practices. She described that although up to 4.7 million debt collection lawsuits were filed in 2022, only 4% of consumers in those suits had counsel and 80% resulted in default judgments against the consumers. She also explained that certain process servers represent that they have served individuals, in person, in multiple states within minutes of each other. Rickard noted that this information is an untapped data source for potential investigations and enforcement decisions.
The breadth and depth of topics discussed during the conference demonstrate the important dialogue that occurs through NAAG meetings like this one. Attorneys general are actively engaged in enforcement actions and policy decisions in their states and understanding their priorities while engaging in the conversation around those issues is critical. As New Hampshire Attorney General John Formella said in his introductory remarks (and others, such as Nevada Attorney General Aaron Ford, have acknowledged), relationships can solve problems between public and private sector and can break through barriers that seem insurmountable. We thank NAAG for putting on this event and outgoing Director of NAAG's Center for Consumer Protection Todd Leatherman for his service.
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