The FTC has continued its strong start to the new year with enforcement actions related to false advertising in the healthcare industry and misleading conduct in the “gig” economy as well as revising the merger reporting thresholds and filing fees. These stories and more after the jump.
Continue Reading FTC Updates (January 16 – January 27, 2023)
#ICYMI – The Federal Trade Commission (“FTC”) extended the public comment period on its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) by 60 days. On December 14, the FTC held an open meeting and voted to notice the public comment period. On December 20, the FTC noticed the public comment period on the Federal Register, which would have originally expired on February 21, 2023. All public comments must now be filed by April 24, 2023.
The Federal Trade Commission (“FTC”) announced it is seeking public comment on potentially updating, expanding, and/or altering the Guides for the Use of Environmental Marketing Claims, known as the Green Guides (16 CFR pt 260). Yesterday, December 14, 2022, the FTC held an open Commission meeting where the Commissioners voted 4-0 to approve the publication of a Federal Register notice announcing a public comment period. The notice is expected to be published in mid-January. Once the notice is published in the Federal Register, comments will be due within sixty days.
The FTC’s Green Guides are designed to help advertisers avoid making environmental claims that may mislead consumers. 77 Fed. Reg. 62122 (Oct. 11, 2012). The Green Guides discourage unqualified environmental benefit claims, nothing that they are difficult, if not impossible, to substantiate. The Green Guides were first issued in 1992 and last updated in 2012. An update to the Green Guides has been expected and desired by many as the Green Guides help businesses to make accurate environmental marketing claims and, if followed, help businesses ward off allegations of deceptive advertising claims.
Continue Reading FTC Seeks Public Comments on the Green Guides
Following Thanksgiving and Native American Heritage Day, the FTC announced an almost $10 million settlement with Google and iHeartMedia related to their allegedly deceptive past endorsements of Google’s Pixel 4 phone and released the Commission’s annual market concentration analysis of the ethanol production industry. These stories after the jump.
Continue Reading FTC Updates (November 28 – December 2, 2022)
The week and a half proceeding the Thanksgiving federal holiday was busy for the Federal Trade Commission. Not only did the Commission release yearly updates such as its Fiscal Year 2022 Agency Financial Report and National Do Not Call Registry Data Book for Fiscal Year 2022, it also filed three complaints, an amicus brief and announced an advanced notice of proposed rulemaking. The Bureau of Consumer Protection has been busy in November and focused on many false advertising and deceptive business practice issues. These stories, plus more, after the jump.
The U.S. Supreme Court is poised to clarify the extraterritorial reach of the Lanham Act for the first time in seventy years. The decision will impact corporations’ ability to seek damages for international trademark infringement, and may resolve a circuit split on the applicability of the Lanham Act on foreign defendants’ foreign conduct. The Court will review the Tenth Circuit’s decision in Abitron Austria GmbH et al. v. Hetronic International Inc. (“Hetronic”) and the extraterritoriality of the Lanham Act, seemingly the Court’s desired outcome after requesting the United States weigh in on Abitron Austria GmbH’s (“Abitron”) certiorari petition filed in January 2022.
Continue Reading U.S. Supreme Court to Decide the Extraterritorial Application of the Lanham Act
The FTC’s past week focused on the future. From Director Levine’s comments about consumer protection in the digital era to the House passing H.R. 3843, the FTC is in a forward-looking posture. More on this, as well as a settlement secured by the FTC, after the jump.
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
A new trend in false advertising lawsuits targets specific characterizing flavor claims on the labels of foods and beverages. For example, Frito-Lay was recently sued in California federal court alleging the company’s “Tostito’s Hint of Lime” tortilla chips falsely implies that natural lime is a primary flavoring ingredient and that consumers were misled by various misrepresentations of lime on the product packaging. Kellogg, Hershey, and Bimbo Bakeries were all sued because the “fudge” in their respective products allegedly are produced with vegetable oil substitutes instead of butter and milk, which the complaint alleges is known to consumers as the traditional way of making fudge.
Typically, in these false or misleading flavoring ingredient lawsuits, a plaintiff attempts to represent a class of consumers and alleges they were charged a premium price for the products because of the specific ingredient, based on the misleading representation. The plaintiff generally must also allege that they would not have purchased the product in the first place if they had known that the specific ingredient was missing.
Maryland beca
me the first U.S. state to create a digital advertising tax on February 12, 2021. The Digital Advertising Gross Revenue Tax (DAGRT) was originally passed in March of 2020, but subsequently vetoed by Maryland Governor, Larry Hogan. Maryland’s legislature voted to override the Governor’s veto, however. The contentious journey for DAGRT passage is likely to be overshadowed by a litigious future.
DAGRT (full text here) imposes a progressive tax on the sale of digital advertising services’ gross revenue within the state. DAGRT focuses on large providers of digital advertising services; entities with revenue exceeding $100 million. The rate of the tax imposed, based on global revenue, is 2.5% for annual global gross receipts of $100 million to $1 billion, 5% for gross receipts of $1 billion to $5 billion, 7.5% for gross receipts of $5 billion to $15 billion, and 10% for gross receipts exceeding $15 billion. The rate then applies to digital advertising services’ gross revenue in Maryland. However, DAGRT does require all entities with an annual gross revenue derived from digital advertising services within the state over $1 million to file a specialized tax return. DAGRT’s focus on large providers of digital advertising services might incentivize these providers to find avenues to avoid the tax by changing their digital advertising strategies. For example, more companies may offer advertisement-free subscription options. It’s also possible that the companies faced with paying the tax may simply pass the cost on to the smaller businesses purchasing the advertisements and to consumers.
Continue Reading Maryland’s Digital Advertising Tax: A Contentious Start, and an Uncertain Future