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Considering Use in Commerce, Source-Identifying-Function, and Conduct vs. Confusion

On June 29, 2023, the Supreme Court vacated the 10thCircuit’s decision in Abitron Austria GmbH et al. v. Hetronic International Inc(“Hetronic”). The Supreme Court principally held that the Lanham Act does not have extraterritorial application. As Crowell previously discussed, the Supreme Court sought briefing on Hetronic from the U.S. Solicitor General, signaling an interest in addressing the Tenth Circuit’s decision, the extraterritoriality of the Lanham Act, and the complex circuit split that has at least three distinct tests. Although the Court agreed 9-0 that the lower court’s decision should be vacated, Justice Alito’s majority opinion and Justice Sotomayor’s concurring opinion disagreed on the second step of the extraterritoriality test, specifically regarding whether foreign conduct can have domestic implications. The majority disagreed with both the Tenth Circuit and the Solicitor General, concluding that the Lanham Act cannot apply to foreign defendants’ foreign conduct.

Continue Reading The Unanimous, but Contentiously Fractured, Supreme Court Decision on Extraterritoriality of the Lanham Act

The FTC has remained active this summer, concluding June with two major notices of proposed rulemaking. One related to the Premerger Notification Rule from the Bureau of Competition and the other related to the Use of Consumer Reviews and Testimonials from the Bureau of Consumer Protection. These stories and more regarding specific matter updates ranging from “Made in USA” advertising to deceptive Delta-8 THC advertising after the jump.

Continue Reading FTC Updates (June 27 – July 7, 2023)

Advances in artificial intelligence have become front and center in the minds of many, including attorneys general focused on consumer protection. Although concerns exist for consumer protection, the advancement of artificial intelligence has the opportunity to add value to consumers.  This is especially true in healthcare. Recently, attorneys general gathered to discuss these issues at the Attorney General Alliance Annual Meeting, during a panel that discussed  The Value of Disruptive Healthcare. In the last few years, the growth of telemedicine has dramatically changed the delivery of healthcare. While these changes were already afoot, the pandemic highlighted the need for virtual access to healthcare and wellness tools. That disruption has added value in many ways to consumers and health care providers managing care for their patients. Similarly, in the coming years, we can expect artificial intelligence to drive even more changes in treatment, therapies, and standards of care in the healthcare sector. During these periods of major technological advancements attorneys general should consider consumers’ safety, privacy, security and consumers’ overall livelihood and health. Dramatic changes in healthcare business and technology are already challenging existing laws in unexpected ways, often creating gaps between the law and what consumers and producers need or want the law to say. This gap period, or regulatory lag, will require producers to assume some regulatory risk and for attorneys general to monitor business activities that they believe create too much risk for consumers.

Continue Reading Attorneys General Consider Consumer Protection Issues Related to Artificial Intelligence in Consumer-Facing Healthcare Technology

The FTC is taking no breaks this summer with an active first half of June. The FTC released two annual reports regarding refunds and consumer finance and credit protection activity as well as initiating a request for public information on collaboration efforts with State Attorneys General. These stories and more regarding specific matter updates, ranging from false advertising to data privacy, after the jump.

Continue Reading FTC Updates (June 5 – June 16, 2023)

On December 20, 2022, the FTC originally noticed its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) on the Federal Register. While the original deadline to submit comments was February 21, 2023, the Federal Trade Commission (“FTC”) extended the public comment period to April 24, 2023.

Continue Reading Green Guides Update – Comments Closed, but the FTC Wanted to Hear More About Waste

The FTC’s past two weeks focused on privacy and cybersecurity as well as the Bureau of Consumer Protection successfully wrapping up multiple cases regarding various forms of unfair or deceptive acts or practices. The FTC launched its third action against Meta regarding user privacy issues. In addition, the FTC is seeking comments on a number of topics ranging from cloud computing to recycling. More on this, after the jump.

Continue Reading FTC Updates (May 1 – May 12, 2023)

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.

Continue Reading Green Guides Comment Deadline Extended

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)