Federal Trade Commission (FTC)

In an aggressive expansion of its security and privacy enforcement programs, on September 15, 2021, the FTC issued what it characterized as a “Policy Statement” reinterpreting an old rule about personal health records.

First, some background. In 2009, Congress directed the FTC to create a rule requiring companies to provide notice when there

As they often have done in the past, the FTC and the FDA issued joint cease and desist letters last week to 10 companies suspected of making unproven health claims – in this instance, claims that dietary supplements treat or cure diabetes. The FTC and the FDA join forces on such letters in order to

Commissioners Cut Procedures, Rescind Policy, Empower Staff, Target Tech

With an unprecedented attack on policies the Federal Trade Commission had long embraced, the new majority of Democratic Commissioners revealed a bold enforcement agenda that would circumvent Supreme Court decisions and avoid Congressional limits.

It was a meeting like none the Federal Trade Commission has ever held. On one week’s notice, the Commission adopted new rules to impose civil penalties on substandard Made-in-USA claims, removed judges and safeguards from rulemaking proceedings, rescinded its 2015 enforcement policy statement on unfair methods of competition, and granted staff more authority to issue subpoenas and civil investigative demands. The vote on every issue followed party lines. Republican Commissioners, Noah Phillips and Christine Wilson, voted against all, and the Democratic Commissioners, Chopra, Khan, and Slaughter, rejected all amendments. Chair Khan announced that public meetings will become regular events at the FTC.
Continue Reading Chopra, Khan, Slaughter Take Control of the Federal Trade Commission

The Decision

1-800-Contacts is one of the largest sellers of contacts online.  One of the principal ways consumers shop for contacts is through key word searches.  In the past, certain 1-800-Contacts competitors purchased the keyword “1-800-Contacts.”  That would place their advertisements at the top of the list of results.  1-800-Contacts sued these companies for trademark

13(b)Recently, the U.S. Chamber of Commerce published a letter to the Committee on Commerce, Science, and Transportation, the Congressional Committee currently working on draft language for a new Section 13(b) of the FTC Act. The Chamber’s letter cautions Congress to ensure that any new statutory language not give the FTC too much authority. In advocating caution, the Chamber makes an important, if subtle, point. The FTC is now arguing that the Supreme Court “took away” 13(b) powers it had before. In reality, though, the Supreme Court in AMG explained that FTC never had the power it arrogated in the first place.

The Chamber’s letter noted that the legislative history of the FTC Act requires the Commission to use Section 19’s administrative processes to obtain monetary relief for past violations. There is no reason that Congress should provide the FTC with additional powers, according to the Chamber, when the FTC already has an avenue to seek monetary relief.

The Chamber’s argument here largely mimics the position of Justice Breyer, who authored the AMG decision from a unanimous Court, concluding that the current version of 13(b) does not allow monetary relief. In AMG, Justice Breyer explained that “[t]he Commission may obtain monetary relief by first invoking its administrative procedures and then § 19’s redress provisions (which include limitations) . . . By contrast, the Commission’s broad reading would allow it to use §13(b) as a substitute for §5 and §19.”

The Chamber’s letter urged Congress not to upset the fine balance the FTC Act originally envisioned. While the Chamber agreed that the FTC should be able to go immediately to Court “to seek appropriate equitable monetary relief for clearly fraudulent cases that are found to be in violation of the law,” it explained that “[m]onetary relief should not be available for every consumer protection violation but should be reserved for the most egregious types of cases.”
Continue Reading Acting Chair Rebecca Slaughter and Chamber of Commerce Spar Over a New 13(b)

Nixing the FixCompanies watching the “right to repair” legislation proposed in some states should not lose sight of the federal landscape. Last week the FTC released a bipartisan report concluding that there is “scant evidence to support manufacturers’ justifications for repair restrictions.” This will likely add momentum to groups pushing for legislation requiring companies, particularly electronics manufacturers,

Congressional Democrats Sound the Alarm, Rally In an Effort to Restore Pre-AMG 13(b) Enforcement AuthorityYesterday, less than a week after the Supreme Court’s unanimous decision in AMG Capital Management v. FTC, two Congressional committees zeroed in on the FTC’s hollowed-out Section 13(b) authority, the fate of which now lies squarely with Congress. Leading Democrats in both chambers have expressed the urgent need for legislation to clarify and strengthen

Lina Khan Confirmation Hearing Signals Potential Big Changes for FTC Update: On May 12th, Lina Khan received bipartisan approval from the Senate Commerce Committee for her nomination as FTC Commissioner. This paves the way for her confirmation hearing before the full Senate which has yet to be scheduled. See our blog post here: FTC Nominee Lina Khan Sails through Committee with Bipartisan Support While Chopra

Welcome to our monthly digest of litigation and regulatory highlights impacting the food and beverage industry.  February saw another win for industry on the vanilla front, a preemption win in California state court, and FDA continuing with COVID-19-related warning letters and foreign supplier verification enforcement.  Let’s take a look….

Litigation

Industry scored another win on