While the long-awaited update to the Merger Guidelines made the biggest waves in the legal news as of late, the FTC has engaged in several other activities of note, including a crackdown on robocalls, a potential update to COPPA, and cautionary letters to multiple healthcare entities. More on this, after the jump.
Tuesday, July 11, 2023
Bureau of Consumer Protection: FTC Operations, Imposters
- The Federal Trade Commission has issued a new blog post warning consumers about scammers who are impersonating FTC staff members. The post warns of common lies that scammers tell when they are pretending to work for the FTC. The post also highlights that the FTC will never call you to demand money, will never threaten you with arrest, and will never promise you a prize. The FTC is encouraging those contacted by scammers to report them immediately to the FTC.
Thursday, July 13, 2023
Bureau of Consumer Protection: Deceptive/Misleading Conduct, Credit and Finance
- The Federal Trade Commission announced a settlement with cryptocurrency platform Celsius Network that will permanently ban the company from offering, marketing, or promoting any product or service that could be used to deposit, exchange, invest, or withdraw any assets. Further, the FTC charged three former executives with tricking consumers into transferring cryptocurrency onto the platform by falsely promising that deposits would be safe and always available. According to the complaint filed by the FTC in federal court, former executives Alexander Mashinsky, Daniel Leon, and Hanoch “Nuke” Goldstein, through Celsius, took title to and misappropriated consumer deposits to fund its operations, pay rewards to other customers, borrow from other institutions, make high risk investments, and make unsecured loans. The aforementioned executives also withdrew significant sums of cryptocurrency from Celsius two months before filing for bankruptcy.
Friday, July 14, 2023
Bureau of Consumer Protection: Health Privacy, Online Advertising and Marketing
- The Federal Trade Commission finalized an order requiring online counseling service BetterHelp to pay $7.8 million to consumers. The order prohibited the company from sharing consumers’ health data for advertising, and banned BetterHelp from sharing consumers’ personal information for retargeting. The FTC charged that BetterHelp used and disclosed consumers’ email addresses, IP addresses, and health questionnaire information to Facebook, Snapchat, Criteo, and Pinterest for advertising purposes despite telling consumers that it would only use or disclose personal health data for limited purposes. The order also required the company to obtain affirmative express consent before disclosing personal information to certain third parties for any purpose; put in place a comprehensive privacy program that includes strong safeguards to protect consumer data; direct third parties to delete the consumer health and other personal data that BetterHelp shared with them; and limit how long it can retain personal and health information according to a data retention schedule.
Bureau of Competition: Nonmerger, Health Care
- The Federal Trade Commission announced the withdrawal of two antitrust policy statements related to enforcement in health care markets: Statements of Antitrust Enforcement Policy in Health Care, published in August 1996, and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program from October 2011. The FTC decided that the withdrawal of the two statements is the best course of action for promoting fair competition in health care markets.
Monday, July 17, 2023
Bureau of Competition: Healthcare Mergers
- The FTC filed an administrative complaint to block IQVIA Holdings, Inc. from acquiring Propel Media, Inc. The complaint alleges that the proposed acquisition would violate Section 5 of the FTC Act and Section 7 of the Clayton Act because it would combine two of the top three providers of programmatic advertising targeted specifically at U.S.-based healthcare providers. This, in turn, would allegedly cause increased prices, reduced choice, and diminished innovation, as this market is highly concentrated. In addition to the administrative complaint, the agency is seeking a temporary restraining order and preliminary injunction in federal court.
Tuesday, July 18, 2023
Bureau of Consumer Protection: Robocall Sweep
- The FTC announced “Operation Stop Scam Calls”, a joint initiative between the agency, over 100 federal and state law enforcement partners, and the attorneys general of all 50 states and the District of Columbia. The initiative is a crackdown on illegal telemarking calls to U.S. consumers; to date, the agencies and attorneys general have brought over 180 enforcement actions against robocallers and Do Not Call violators. One participant, Ohio Attorney General Dave Yost, noted that the program’s “secret weapon is consumers – whom we urge to continue reporting illicit robocalls, so we can sever these unwanted robocallers’ connection once and for all.”
Wednesday, July 19, 2023
Bureau of Consumer Protection: Children’s Online Privacy Protection Act (COPPA)
- The Commission is seeking comment via a Federal Register notice on a proposed method for obtaining verifiable parental consent in an online context, as required by the COPPA Rule. The proposed method, suggested via application by the Entertainment Software Rating Board (“ESRB”), involves analyzing the geometry of a user’s face to confirm that they are an adult. The notice seeks comment on a number of specific questions, including whether the proposed age verification method is covered by existing methods; whether the method meets the COPPA Rule’s requirements; and whether the method poses a privacy risk to consumers’ personal information, including biometric information. Comments may be submitted up until August 21, 2023.
Bureau of Consumer Protection: Deceptive Marketing
- The Commission filed a complaint against Rejuvica and its owners Kyle Armstrong and Kyle Dilger for allegedly making unsubstantiated and false claims about their product Sobrenix, which they claimed would reduce or eliminate alcohol cravings and consumption. The complaint alleges that these and other claims about Sobrenix are false, and that the company also used paid endorsers, bogus review sites, and deceptively formatting advertising to promote the product. The FTC further alleged that this conduct constituted deceptive acts and the making of false advertisements related to a substance use disorder treatment product in violation of Sections 5 and 12 of the FTC Act, as well as the Opioid Addiction Recovery Fraud Prevention Act of 2018 (“OARFPA”). The agency and the defendants have stipulated to a proposed order for a permanent injunction under which the defendants are banned from making unsubstantiated claims about any product’s health benefits or ability to cure or treat any disease, including alcohol addiction. Defendants must also pay $650,000 to the FTC to be used to refund consumers.
Bureau of Competition: FTC-DOJ Merger Guidelines
- The FTC and DOJ released a highly-anticipated draft update to the Merger Guidelines. Chair Khan, Commissioner Slaughter, and Commissioner Bedoya all issued separate statements about the proposed guidelines, and the agency issued a Fact Sheet about the draft. Crowell has put together a detailed Client Alert explaining the differences from the prior guidelines. Public comments about the guidelines can be submitted at this link through September 18, 2023.
Thursday, July 20, 2023
Bureau of Consumer Protection: Health Privacy
- The Commission and the U.S. Department of Health and Human Services issued a joint letter to approximately 130 hospital systems and telehealth providers, cautioning them about serious privacy and security risks involved in online tracking technologies. The letter notes that impermissible disclosures of personal health information to third parties may not only violate HIPAA, but also the FTC Act and the FTC Health Breach Notification Rule.
Bureau of Competition: Pharmacy Benefits Managers (PBMs)
- The FTC voted to issue a statement cautioning against reliance on certain advocacy letters and reports issued between 2004 and 2014. These statements argued that certain proposals to increase PBM transparency could undermine the competitive process. The letter explains that the PBM industry “has changed significantly over the last two decades with increased vertical integration and horizontal concentration; the growth of PBM rebates, list prices and DIR fees; and the expiration of prior FTC Consent Orders.” Due to these changes, the agency believes that reliance on these older statements “is misplaced” and discourages relying on them. Commissioner Slaughter and Chair Khan issued separate statements providing more context behind the statement.