As the storm of concussion-related litigation continues to churn, the Federal Trade Commission is once again wading into its turbulent waters. In August, the FTC sent warning letters to five undisclosed “major” retailers, expressing concerns that athletic mouthguards are being advertised deceptively on the retailers’ web sites as helping to prevent concussions. These FTC letters represent the convergence of two trends at the Commission: (1) a recent focus on advertising claims of concussion prevention/protection; and (2) sustained efforts to hold retailers accountable for advertising claims concerning the products on their shelves.
Retailers in the Crosshairs
The FTC’s letters mark the first time that the Commission has called retailers to account for allegedly deceptive concussion claims. They cite a 1977 FTC decision, Porter & Dietsch, Inc., for the proposition that retailers “can be liable for violating the FTC Act by disseminating false or unsubstantiated claims.” The FTC cited an example of a specific (and redacted) product, and recommended that the retailers review their web sites to ensure that they do not contain “concussion protection claims for which competent and reliable scientific evidence does not exist.” The FTC stated its intent to revisit the retailers’ web sites within 90 days, and implied that enforcement actions would be forthcoming if unsubstantiated claims were not removed.
FTC’s concussion warning letters continue a trend of the Commission using the threat of enforcement against retailers essentially to turn them into deputized enforcers of false advertising rules. This practice places a substantial burden on retailers to demand substantiation of potentially questionable claims from product manufacturers.