Category Archives: Federal Trade Commission

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FCC and FTC Announce Consumer Protection Memorandum of Understanding

On Monday, the FCC and FTC published a Memorandum of Understanding in which the two agencies agreed to engage in greater coordination and collaboration on consumer protection issues, with greater respect for each agency’s jurisdiction. The MOU comes at a time when both agencies are seeking to position themselves as protectors of consumers in the digital … Continue Reading

The FTC Pressures Press Interactions, Defies Commercial Speech Doctrine

On Tuesday, the FTC joined the Department of Justice and several other federal agencies in announcing numerous recent and ongoing actions against dietary supplement marketers. The FTC, in its discussions, highlighted a case that it filed earlier this year against marketers of green coffee products. That case is closely related to another case involving the … Continue Reading

Weight-Loss Claims: How Many Studies Does the FTC Really Think It Takes?

On Tuesday, the FTC announced that it has sent warning letters to 20 marketers of weight-loss dietary supplements. The letters question whether the companies possess adequate support for claims and describe the scientific evidence required to support such claims. The Commission is asking the companies to review all product claims, including endorsements and testimonials, to … Continue Reading

Webinar: Preparing for the Worst: A Step by Step Guide to Understanding how the FTC Advertising Claims Enforcement Process Works

Industry scored an important victory in the recent DOJ vs. Bayer case.  But, despite that outcome, health claim enforcement will remain a key priority for the FTC going forward.  This presentation is a practical discussion of how the FTC enforcement process works and advocacy steps that companies should consider along the way, including selecting and … Continue Reading

Highlights from the FTC’s Second “Start With Security” Initiative

FTC Start with SecurityOn November 5, the FTC hosted its second “Start With Security” event in Austin, Texas in an effort to provide companies with practical tips and strategies for implementing effective data security. FTC Commissioner Terrell McSweeny opened the event discussing the FTC’s “Start With Security” business initiative and guidance document, which provides “best practices” (and not … Continue Reading

FTC Hosts Workshop on Lead Generation

On October 30, 2015, the FTC held a workshop on lead generation to explore online lead generation in various industries.  Lead generation, also called performance marketing, is the process of identifying or cultivating consumer interest in a product or service, and distributing this information to third parties.  Lead generation can facilitate comparison shopping and promote … Continue Reading

United States v. Bayer: Preventing or Treating Disease Claims

In recent years, the FTC and the Center for Science in the Public Interest (“CSPI”) seem to have seen disease claims everywhere, regardless of whether the FDA has deemed the same claims appropriate, non-disease structure/function claims.  In the United States v. Bayer Corp., for the second time in recent months, a court called them on … Continue Reading

Will the FTC Have Access to Your Electronic Communications?

Amending the Electronic Communications Privacy Act (ECPA) has long been under consideration in Congress, but recent testimony indicates that ECPA reform may have deeper implications for companies subject to FTC investigations. The ECPA, passed almost 30 years ago, generally prohibits the unauthorized access to communications systems and the disclosure of the contents of wire and … Continue Reading

“Green” Certifications and Seals Do Not Have FTC Approval

On September 14, FTC staff sent warning letters to five providers of environmental certification seals and 32 businesses that display them online, alerting them to the agency’s concerns that the seals may be deceptive and may not comply with the FTC’s Green Guides.  Although the warning letters do not identify which certifiers, seals, or businesses … Continue Reading

FTC Announces Settlement Over Influencer Campaign for Xbox One

In January 2014, AdAge interviewed me about news reports that Machinima had hired influencers to create videos promoting Microsoft’s Xbox One gaming console and games. In a native advertising campaign, the influencers posted positive reviews, but didn’t disclose that they had been paid to do so. During the interview, we speculated about whether the FTC … Continue Reading

FTC as Data Security Cop Affirmed

The U.S. Court of Appeals for the Third Circuit this week affirmed the authority of the Federal Trade Commission (“FTC” or “Commission”) to enforce against companies that lack reasonable cybersecurity practices.  Prior to this ruling, no federal court had adjudicated whether the FTC had authority under 15 U.S.C. § 45(a) (“Section 45(a)”) of the Federal … Continue Reading

FTC Urges FDA to Reconsider Homeopathic Regulatory Framework

In a comment filed last Friday, the Federal Trade Commission (FTC) responded to its sister-agency’s request for comments by urging the Food and Drug Administration (FDA) to reconsider how homeopathic drugs are regulated.  As we discussed here, both agencies recently signaled interest in the homeopathic area with the FDA hosting a two-day public hearing last … Continue Reading

FTC Resolves Case Against “Melanoma Detective” App Marketer

The FTC announced late last week that it resolved its case against the final defendant, Avrom Lasarow, in the “Melanoma Detective” app matters.  The FTC alleged that claims that the apps could detect and diagnose melanoma in its early stages were not supported by competent and reliable scientific evidence.  As we discussed here, the FTC … Continue Reading

FTC Closing Letter Provides Good Data Security Reminder

Last week, the FTC sent a closing letter to Morgan Stanley Smith Barney LLC (“Morgan  Stanley”) relating to the agency’s investigation over whether Morgan Stanley engaged in unfair or deceptive acts or practices by failing to secure certain account information related to its Wealth Management clients. The investigation examined allegations that a Morgan Stanley employee … Continue Reading

FTC Closes Investigation Involving Proposed Changes to PayPal’s Terms

Earlier this year, PayPal announced planned changes to its User Agreement that would have, among other things, given the company broad rights to contact people by phone or text messages. The provision stated, in part: You consent to receive autodialed or prerecorded calls and text messages from PayPal at any telephone number that you have … Continue Reading

Who’s Watching Dietary Supplement Advertising?  Everybody!

For several years now, dietary supplement advertising has been squarely on the radar of the FTC, state regulators, self-regulators, and last but never least, plaintiff’s lawyers. A recent FTC settlement with the makers of the dietary supplement, Procera, highlights that point. The FTC’s investigation appears to have begun with a nudge from the self-regulatory body, … Continue Reading

FTC Shuts Down a Risky Risk-Free Offer

This morning, the FTC announced that it had stopped a group of 15 companies and 7 individuals from using deceptive “risk-free trial” offers to sell skincare products online. At the Commission’s request, a federal court issued a temporary restraining order against the defendants, halting their marketing practices, freezing their assets, and appointing a receiver over … Continue Reading

FTC Updates FAQs for Endorsement Guides, Offers More Guidance on Social Media and Video Endorsements

The FTC recently revised its “What People are Asking” page, a source of informal guidance relating to the FTC’s Endorsement Guides.  The Endorsement Guides were last revised in 2009.  The FAQ revisions are intended to address current advertising and marketing trends, such as the use of Twitter endorsements, “like” buttons, and uploaded videos. The revisions … Continue Reading

Q: What’s Different About the FTC’s New Endorsement Q&As? A: Lots.

The FTC recently released a new version of its Q&As on the Endorsement Guides. The old Q&As, released in 2010, were about seven pages long. The new ones just about double that. The revisions and additions reflect many of the positions that the FTC has taken in the course of its enforcement over the past … Continue Reading

All Eyes on Homeopathics: FTC Workshop Signals Targeted Regulatory Scrutiny of Homeopathic Products

On Tuesday, the Federal Trade Commission “FTC” announced it will be hosting a workshop in September to evaluate advertising for over-the-counter homeopathic products. Homeopathy is an alternative medicine practice dating back centuries that incorporates the principle of “like cures like,” which holds that a given disease’s symptoms are “healing responses” that can be replicated by … Continue Reading

Wet Wipes Manufacturer Must Back Up Its Flushing Claims (And Not Consumers’ Plumbing)

On May 18, 2015, the FTC announced a settlement with Nice-Pak Products, Inc., concerning claims that its moist wipes are “flushable,” “break apart after being flushed,” and are “safe” for sewer and septic systems. Nice-Pak marketed and sold its flushable wipes primarily through private label brands, such as Costco’s Kirkland Signature Moist Flushable Wipes, CVS’s … Continue Reading