Federal Trade Commission

With the end of the fiscal year approaching, the FTC has been busy issuing multiple reports, plans, and resolutions related to its various powers and obligations, including a report to Congress on the Children’s Online Privacy Protection Act (“COPPA”). This story and more after the jump. 

Tuesday, August 23, 2022

Bureau of Consumer Protection: Advertising to Children

  • In connection with its October 19, 2022 virtual event on “Protecting Kids from Stealth Advertising in Digital Media,” the FTC is seeking public comment on how children are affected by digital marketing messages that may blur the line between ads and entertainment. Specific topics include children’s capacity to recognize and distinguish advertising content at different ages; harms to children from being unable to distinguish ads from content; measures that should be taken to protect children from blurred content; and the need for and efficacy of disclosures as a solution. Comments may be submitted at regulations.gov until November 18, 2022.

Wednesday, August 24, 2022

Bureau of Consumer Protection: Deceptive Health Advertising

  • The Commission is sending rebate payments totaling nearly $21,000 to 576 consumers who purchased deceptively marketed cannabidiol (“CBD”) products from Arizona-based Kushly Industries. The payments are connected to a March 2021 complaint filed against the company. The complaint alleges that Kushly made false or unsubstantiated claims that its CBD products could treat or cure multiple conditions, including cancer and multiple sclerosis, and that these claims were backed by scientific studies and research. The complaint asserts that these allegations violated Sections 5(a) and 21 of the FTC Act. This case predates the FTC’s loss of its ability to obtain equitable monetary relief in federal court for consumers following an April 22, 2021 Supreme Court decision.

FTC Operations: Report on Children’s Online Privacy Protection Act (“COPPA”) Rule

  • The FTC submitted its Federal Trade Commission Report to Congress on COPPA Staffing, Enforcement and Remedies. This eight-page report outlines the agency’s resources and personnel tasked with enforcing the COPPA Rule; an overview of the eighty COPPA investigations conducted in the past five years; and relief obtained from eleven of those investigations. The Commission concludes by noting that it has worked vigorously on COPPA investigations and could do even more with additional resources. Commissioner Christine S. Wilson issued a concurring statement in which she urges Congress to review the COPPA Rule’s status and resources to determine whether it is being “appropriately prioritized or given short shrift.”

Friday, August 26, 2022

FTC Operations: Fiscal Year Plans, Reports, Notices, and Resolutions

  • The FTC finished the week by issuing a number of important documents.
    • The agency approved three omnibus resolutions authorizing compulsory process in investigations related to collusive practices; mergers, acquisitions, and transactions; and the car rental industry. The agency had previously needed to authorize compulsory process in each related individual case in these three areas, a requirement that the FTC’s press release describes as “an unnecessary and time-consuming barrier to staff’s pursuit of an investigation.”
    • The FTC issued a Federal Register Notice amending the Telemarketing Sales Rule to update the fees charged to entities accessing the National Do Not Call Registry.
    • The Commission published its Fiscal Year 2022-2026 Strategic Plan and its Fiscal Year 2021-2023 Performance Report and Performance Plan, as required under the GPRA Modernization Act of 2010.  The Strategic Plan sets the agency’s priorities over the next five years, based on a review of goals, strategies, metrics, and stakeholder feedback, and will serve as the foundation for annual performance reporting. The Performance Report documents the FTC’s goals and metrics for FY 2021 based on the prior Strategic Plan, while the Performance Plan outlines strategies and targets for future fiscal years based on the new Strategic Plan. The Plans and Reports were approved in a 3-1-1 vote, with Commissioner Noah Phillips abstaining. Commissioner Christine S. Wilson issued a statement dissenting from the new Strategic Plan. Chair Lina Khan, joined by Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya, also issued a statement explaining the shifts in plan priorities and how the new plan will “more fully protect Americans from unlawful business practices.”