New considerations have emerged for advertisers who publish reviews or endorsements. On June 29, 2023, the FTC finalized its updated Endorsement Guides, which provide insights to businesses on how the use of reviews and endorsements might be considered unfair or deceptive in violation of Section 5 of the FTC Act. Over the past several months, the FTC sought public comments on proposed updates to the Endorsement Guides to accurately reflect the modern landscape of advertising, which includes reliance on social media and content creators.

Continue Reading Reviews and Endorsements Say What? FTC Finalizes Updates to Endorsement Guidelines

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

On Tuesday, June 20, 2023, the Federal Trade Commission sent letters to 50 online marketplaces notifying them of their responsibility to fully comply with the new Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act – or the INFORM Consumers Act – as soon as the law takes effect on June 27, 2023.

Continue Reading Consumer Protection Law Taking Effect This Month Could Subject Online Marketplaces to Civil Penalties of up to $50,120 Per Violation

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)

This week, the FTC filed a lawsuit to block a large biopharmaceutical acquisition, launched a refund claims process for aggrieved consumers, and issued a warning that increasing use of biometric identifier technologies raises significant consumer privacy and data security concerns. These stories and more after the jump.

Continue Reading FTC Updates (May 15 – May 19, 2023)

In a decision to be applauded by brand owners throughout the country, the Supreme Court clarified the balance between trademark rights and First Amendment interests in its decision in the Jack Daniel’s case, Jack Daniel’s Props., Inc. v. VIP Prods. LLC, No. 22-148 (June 8, 2023).  Vacating the judgment of the U.S. Court of Appeals for the Ninth Circuit, the Court held that an accused infringer does not receive special First Amendment protection when it has used a trademark to designate the source of its own goods.  Such use is subject to the traditional test for likelihood of confusion, the Court held, not a threshold test derived from the First Amendment such as that contained in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).[1]

Continue Reading A Win for Brand Owners as Jack Daniel’s Escapes the Doghouse in Supreme Court Ruling

Ever since the public launch of OpenAI’s ChatGPT, the world has been gasping at the astonishing accomplishments of this generative AI chatbot:  a simple “prompt” in the form of a question (“which are the most important decisions of the CJEU in copyright?”) will receive a credible response within seconds (“The Court of Justice of the European Union (CJEU) has issued several important decisions in the field of copyright law. While it is challenging to determine a definitive list of the most important decisions, here are some key rulings that have had significant impact” and it goes on to list some of the CJEU’s most well know decisions, such as Infopaq, UsedSoft, Svensson, Deckmyn, ACI Adam, GS Media and YouTube).

Continue Reading AI-Powered Chatbots: Mythical Super Creature or Legal Trojan Horse

A recent article published by MedTech, “Could Bassinet Clearance Expand FDA Authority? Law Firm Expresses Concern,” quotes a Crowell client alert and Crowell attorney, Robbie Jost, on this development. According to the client alert, “To the extent the FDA considers the SNOO a medical device based on its intended impact on infant sleep position, many other sleep products could also fall within this, or a similar, category-e.g., pillows intended to position the head to reduce snoring, pillows intended to be used by pregnant women to enable a comfortable sleep position, or even simply mattresses of different firmness intended to support the body in different ways.” But will this occur? “Short of a similarly situated manufacturer deciding to go for FDA clearance,” Jost says, “I don’t think that the FDA would exercise jurisdiction over other products just because they’re similar to the SNOO.” “[But] in theory, this [clearance] could lead other manufacturers of similar types of consumer products to seek clearance from the FDA to market them as medical devices.” “If manufacturers decide to go to the FDA and seek clearance and the FDA gives that clearance, the FDA will be more of a stakeholder in the regulatory landscape,” she said. “I just can’t predict whether other manufacturers will follow.”

To read the full article, click here.

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)