In an expansion designed to bring its advertising review jurisdiction in line with those of international self-regulatory organizations and enforcers, the National Advertising Division (NAD) has expanded its review authority so that it not only covers the truth and accuracy of national advertising, but also advertising that portrays “negative harmful social stereotyping, prejudice or discrimination.” In so doing, NAD seeks to adapt its review process to permit the review of ads that cause possible social harm based on stereotypical or discriminatory portrayals. Unlike some international bodies, which are not constrained by the First Amendment, NAD proposes to tether its review to such portrayals that may cause harm because they are misleading and inaccurate.

Continue Reading National Advertising Division (NAD) Expands Jurisdiction to Review of Advertising Portraying “Negative Harmful Social Stereotyping, Prejudice or Discrimination.”

The FTC had an active week and addressed numerous topics, including ways to protect older adults and gig economy workers. Notably, the FTC released a report showing the rise in sophisticated dark pattern practices and the Commission’s commitment to combatting them. The Commission also announced a proposed rule targeting government and business impersonation scams. This story and more after the jump. 

Continue Reading FTC Updates (September 12–16, 2022)

The FTC has been aggressive wrapping up the fiscal year before the Labor Day weekend—it initiated several actions across various industries, protecting consumers from sensitive data leak to deceptive “pre-approved” credit offers. The Commission also issued its E-Cigarette Report for 2019-2020, which highlights dramatic surge in sale of flavored disposable e-cigarettes and menthol e-cigarette cartridges. Last but not the least, the FTC is sending checks totaling more than $1.9 million to consumers who bought Hubble brand contact lenses from Vision Path, Inc. This story and more after the jump. 

Continue Reading FTC Updates (August 29-September 2, 2022)

The news of Elon Musk’s $42-44 billion offer to purchase Twitter, and his apparent cold feet, have spread far and wide. Speculation has swirled that his offer was a politically-motivated stunt and that he never intended to actually follow-through with the deal. More recently, however, Musk has publicly demanded more information from Twitter regarding its so-called “bots” and he has publicly suggested that up to 20% of Twitter’s active user base is comprised of fake accounts, in contrast to the 5% that Twitter itself has claimed in its latest annual report. So, is Musk’s stated concern real or a coverup for cold feet?

While some have derided Musk’s demands as pretextual, he has a valid point that the number of real, daily active users on the Twitter platform – actual human eyeballs – is critical to the value of Twitter. A difference of 15% in estimates of bots is likely to be material. Twitter itself has said so.

Continue Reading Does Elon Musk Have a Point? The Impact of Bots on Twitter Revenue.

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

For the first time, the FTC used the Opioid Addiction Recovery Fraud Prevention Act to go after the promoter of an addiction treatment network. The 2018 law allows the agency to seek civil penalties for deceptive practices related to addiction treatment, and the case sparked dueling public statements from FTC Chair Lina Khan and Commissioner Christine Wilson. Later in the week, the Commission held an open meeting and discussed endorsements and testimonials in advertising, education technology, and the Children’s Online Privacy Protection Act. Following the meeting, the FTC released the long-awaited draft revised Guides Concerning the Use of Endorsements and Testimonials in Advertising for comment. These stories and more after the jump. 

Continue Reading FTC Updates (May 16-20, 2022)

On May 12, 2022, New York City Mayor Eric Adams signed into law the Amended New York City Pay Transparency Law, Int. 134-A, extending the effective date of that statute from May 15, 2022 to November 1, 2022.  The pay transparency law (“Law”) requires New York City employers and employment agencies with four or more employees, or employees or agents thereof (“Covered Employers”), to include compensation information in postings for new employment opportunities, internal promotions and transfers that they choose to post. The amendments clarify that (1) positions “that cannot or will not be performed, at least in part, in” New York City are exempt from the pay posting requirement; (2) either annual salary or hourly wage information must be disclosed in the posting; (3) a Covered Employer has a 30-day opportunity to cure, with no penalty, in response to a first administrative complaint of non-compliance; and (4) only current employees have a private right of action against their employers. The New York City Commission on Human Rights (“Commission”) recently issued updated guidance to assist Covered Employers with the recent amendments.
Continue Reading Effective Date of the New York City Pay Transparency Law Extended to November 1, 2022

The FTC, in partnership with the DOJ, filed a complaint against a Voice over Internet Protocol service provider for the transmission of millions of allegedly illegal prerecorded telemarketing robocalls. The company and its owner are now facing injunctive and monetary penalties. The Commission also announced its intentions to update the Telemarketing Sales Rule with a notice and advance notice of proposed rulemaking. More on these stories after the jump.
Continue Reading FTC Updates (April 25-April 29, 2022)

Monday, January 24, 2022

Bureau of Competition: Premerger Notification Filings

  • The FTC announced the 2022 updates on the size of transactional thresholds for premerger notification filings and interlocking directorates. The size-of-transaction thresholds for reporting proposed mergers and acquisitions under Section 7A of the Clayton Act will adjust to $101 million, up from $92 million. The thresholds under Section 8 of the Act that trigger prohibitions on certain interlocking memberships on corporate boards of directors were also updated: $41,034,000 for Section 8(a)(l) and $4,103,400 for Section 8(a)(2)(A). Commissioner Rebecca Kelly Slaughter issued a statement, and Chair Lina M. Khan joined, which highlighted the FTCs updates and showed support for Congress’ efforts to increase certain fees and implement other adjustments to ensure that it is keeping pace with the U.S. economy.


Continue Reading FTC Updates (January 24–28, 2022)