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Category Archives: Federal Trade Commission

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United States v. Bayer: Preventing or Treating Disease Claims

Posted in Advertising, Advertising Litigation, Federal Trade Commission, Food and Drug
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?

Posted in Advertising, Data Security, Federal Trade Commission, Legislative Developments, Privacy
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

Posted in Advertising, Federal Trade Commission, Green Marketing
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

Posted in Federal Trade Commission, Native Advertising, Social Media
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

Posted in Data Security, Federal Trade Commission
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

Posted in FDA, Federal Trade Commission, Food and Drug
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

Posted in Federal Trade Commission, Food and Drug, Telehealth
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

Posted in Data Security, Federal Trade Commission, Privacy, Privacy and Information Security
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

Posted in Federal Trade Commission, Mobile Marketing, Telemarketing and Call Center Operations
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!

Posted in Advertising, Class Action, Federal Trade Commission, NAD
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

Posted in Federal Trade Commission
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

Posted in Federal Trade Commission, Promotions Marketing, Social Media
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

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

Posted in FDA, Federal Trade Commission, Food and Drug
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)

Posted in Advertising, Federal Trade Commission, Green Marketing
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

Decision Highlights Questions Over Substantiation for Weight Loss Claims

Posted in Advertising, Federal Trade Commission, Food and Drug
The Eleventh Circuit recently issued a decision in an contempt proceeding against Hi-Tech Pharmaceuticals and several individuals. The case highlights the ongoing debate over whether clinical trials are required for weight loss claims and, if so, whether the clinical trials must be on the full product formulation rather than active ingredients. In 2008, a federal district… Continue Reading

FTC Settles with Retail Tracking Company that Made Privacy Policy Promises It Couldn’t Keep

Posted in Federal Trade Commission, Privacy and Information Security, Retail
Last week, the Federal Trade Commission announced its first settlement with a retail tracking company, resolving allegations that Nomi Technologies, Inc., a micro-location platform that provides analytics services to retailers through its product “Listen,” failed to abide by several promises it made in its privacy policy. Under the terms of the agreement, Nomi is prohibited… Continue Reading

Claiming Safe Harbor on Your Website? Recent FTC Enforcements Provide Some Lessons About Certification Lapses

Posted in Federal Trade Commission, Privacy and Information Security
The Federal Trade Commission (“FTC”) announced on Monday two more Safe Harbor-related settlements with two companies for misrepresenting their participation in the U.S.-EU Safe Harbor framework, which is subject to the FTC’s deception authority under Section 5 of the FTC Act.  The U.S.-EU Safe Harbor framework is a method whereby U.S. companies can comply with… Continue Reading

“Throttled” Motion to Dismiss; FTC Case Against AT&T for “Unlimited” Data Promises Continues

Posted in Federal Trade Commission
On March 31st, a federal judge in California District Court issued an Order denying AT&T’s motion to dismiss the Federal Trade Commission’s (FTC’s) lawsuit against the company concerning its advertising and business practices for its mobile wireless data plans. The FTC’s case against AT&T will now move forward on the merits. The FTC initiated the… Continue Reading

Senate Unanimously Approves “Internet of Things” Resolution

Posted in Federal Trade Commission, Privacy and Information Security
While the broader issues of consumer privacy and data security remain hot topics,  Congress and government enforcers have focused particular zeal on emerging technologies.  Just this week, the Senate unanimously passed a bipartisan resolution calling for the development of “a strategy to incentivize the development of the Internet of Things.”  The resolution recognizes that the Internet… Continue Reading

FTC Enforcement Targets BMW Warranties

Posted in Federal Trade Commission
The Federal Trade Commission  (“FTC”) announced last week that it reached a settlement with BMW of North America, LLC, (“BMW”) regarding the maintenance and repair warranty that BMW’s MINI Division provided consumers. Under the Magnuson-Moss Warranty Act (“Act”), a company that provides a warranty cannot condition that warranty on the purchase of parts or services… Continue Reading