On Wednesday, the U.S. Senate confirmed Mary Boyle to serve as a commissioner of the U.S. Consumer Product Safety Commission (“CPSC”) by a vote of 50-48. For the first time since late October 2019, when then-Acting Chairman Ann Marie Buerkle departed the agency, the Commission will have a full complement of five commissioners. And, most notably, for the first time since May 2018, the Democrats will hold a voting majority.     

As soon as Ms. Boyle is sworn in, she will join Democratic Commissioners Alexander Hoehn-Saric and Richard Trumka Jr. and Republicans Dana Baiocco and Peter Feldman. As we wrote last July when President Biden announced her nomination, Ms. Boyle is well known to the product safety community. She knows the inner-workings of the CPSC as well as anybody as she has served most recently as the agency’s Executive Director. She has also served as the agency’s acting General Counsel. Interestingly, Ms. Boyle is the second Executive Director of the agency recently nominated for the Commission, as President Obama nominated then-Executive Director Elliot Kaye to be Chairman.

Continue Reading Senate Confirms Mary Boyle to CPSC; Democrats Reclaim Majority

This week, the Commission announced that it blocked a hospital merger in Utah and New Jersey and ordered an oil and gas divestiture in Michigan. The FTC also issued a policy statement on exclusionary rebates and fees in prescription drug pricing and submitted a report to Congress on combatting online harms through innovation. Commissioner Noah Joshua Phillips issued a dissenting statement regarding the FTC’s report to Congress, and Commissioner Christine Wilson questioned whether the FTC’s Fuel Rating Rule under the Petroleum Marketing Practices Act is necessary. These stories and more after the jump. 

Continue Reading FTC Updates (June 13-17, 2022)

The past week witnessed a big win to the FTC—its lawsuit against RCG Advances, LLC and its owner Robert Giardina has resulted in a permanent ban and return of more than $2.7 million to consumers. In the meantime, the Commission is sending checks totaling more than $164,000 to consumers who were harmed by a bogus mortgage relief scam. Lastly, the FTC initiated a new action against California-based Gravity Defyer Medical Technology Corporation and its owner Alexander Elnekaveh for allegedly deceptive pain-relief claims for Gravity Defyer footwear. These stories and more after the jump.

Continue Reading FTC Updates (June 6-10, 2022)

The FTC had a busy week, taking multiple actions against alleged scammers and pyramid schemes in the finance and credit industries. In merger news, the agency announced a workshop on pharmaceutical mergers, and it took enforcement actions related to several mergers in a variety of industries. The FTC also issued a report showing that consumers have lost a whopping $1 billion in cryptocurrency scams since 2021. These stories and more after the jump. 

Continue Reading FTC Updates (May 30-June 3, 2022)

The news of Elon Musk’s $42-44 billion offer to purchase Twitter, and his apparent cold feet, have spread far and wide. Speculation has swirled that his offer was a politically-motivated stunt and that he never intended to actually follow-through with the deal. More recently, however, Musk has publicly demanded more information from Twitter regarding its so-called “bots” and he has publicly suggested that up to 20% of Twitter’s active user base is comprised of fake accounts, in contrast to the 5% that Twitter itself has claimed in its latest annual report. So, is Musk’s stated concern real or a coverup for cold feet?

While some have derided Musk’s demands as pretextual, he has a valid point that the number of real, daily active users on the Twitter platform – actual human eyeballs – is critical to the value of Twitter. A difference of 15% in estimates of bots is likely to be material. Twitter itself has said so.

Continue Reading Does Elon Musk Have a Point? The Impact of Bots on Twitter Revenue.

On May 25, 2022, following markup in the Judiciary Committee, Senator Amy Klobuchar introduced an amended version of the American Innovation and Choice Online Act (“AICOA”), an antitrust bill we previously reported on that aims to curtail self-preferential conduct by certain online platforms. The revised bill now carves out telecommunications providers and financial service companies from the bill’s prohibitions, and reduces potential penalties for violations. Additionally, the revision now creates an exception to the bill’s technical interoperability requirements “where such access would lead to significant cybersecurity risk.” Although critics complain the revisions do not go far enough to address the bill’s shortcomings, Senator Klobuchar and other bi-partisan supporters are pushing for a Senate floor vote this summer.

Continue Reading Senate Revises Antitrust Bill Aimed at Curbing Self-Preferential Conduct by Online Platforms

The FTC has placed Twitter in the hot seat again for privacy related practices that it alleges impacted over 140 million users. The Commission has also resolved actions pertaining to alleged magazine subscription scams and credit card laundering. In addition, the FTC is turning to the public to gather information regarding the recent infant formula shortage. These stories and more after the jump. 

Continue Reading FTC Updates (May 23–27, 2022)

Earlier this year, Hermès filed a trademark infringement suit against Los Angeles-based designer Mason Rothschild for creating and selling faux-fur digital renditions of the luxury Hermès Birkin handbags and using a collection of 100 NFTs, titled “MetaBirkins,” to authenticate the digital images.[1] In response, Rothschild filed a motion to dismiss Hermès’ trademark infringement claim under the Rogers test on the basis that the digital images of the Birkin bags are “art” and, therefore, receive First Amendment protection.[2] Hermès opposed, arguing that the Polaroid factors— instead of the Rogers test—should apply, to assess likelihood of confusion.[3] On May 18, 2022, the court denied Rothschild’s motion to dismiss, concluding that: (1) the Rogers test applies to the trademark infringement analysis of the “MetaBirkins” title, and (2) the Polaroid factors apply to the explicit misleadingness analysis.[4]

Continue Reading In the bag (for now): Hermès survives motion to dismiss in MetaBirkin NFT lawsuit

The California Office of the Attorney General issued its first opinion interpreting the California Consumer Privacy Act (CCPA) on March 10, 2022, addressing the issue of whether a consumer has a right to know the inferences that a business holds about the consumer. The AG concluded that, unless a statutory exception applies, internally generated inferences that a business holds about the consumer are personal information within the meaning of the CCPA and must be disclosed to the consumer, upon request. The consumer has the right to know about the inferences, regardless of whether the inferences were generated internally by the business or obtained by the business from another source. Further, while the CCPA does not require a business to disclose its trade secrets in response to consumers’ requests for information, the business cannot withhold inferences about the consumer by merely asserting that they constitute a “trade secret.”

Continue Reading California AG Interprets “Inferences” Under CCPA

On May 20, 2022 the Federal Trade Commission’s (“FTC”) Commissioners unanimously approved a request for public comment on proposed updates to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guides” or “Guides”). In the draft revisions, released last week, the FTC seeks to update the Endorsement Guides and provide new examples that reflect advertisers’ growing reliance on social media advertising. The Endorsement Guides were last revised in 2009. See 16 CFR pt 255.

The Endorsement Guides require advertisers that feature endorsements made by endorsers with an unanticipated material connection to the advertiser—for example, monetary payment, a sweepstakes entry, or something else of value—to disclose that connection in the advertising. In addition, endorsements must be truthful and accurate, reflecting the endorser’s actual experience with the product. Marketers that fail to comply with the Endorsement Guides violate Section 5 of the FTC Act.

Continue Reading FTC Issues Long-Awaited Updates to the Endorsement Guides