Tuesday, November 23, 2021
Bureau of Consumer Protection: Telemarketing and Do Not Call
In recent weeks, the Federal Trade Commission (“FTC” or “Commission”) sent nearly two thousand letters with a “Notice of Penalty Offenses” to a who’s who of companies across America, putting them on notice that they might face steep potential civil penalties if they engage in deceptive conduct. The letters targeted top consumer products companies, leading retailers and retail platforms, major ad agencies, and other advertisers nationwide that engage in online marketing, multi-level marketing, offer “gig” economy jobs, or are in the for-profit education sector.
Continue Reading FTC “Notice of Penalty Offense” Letters – What Are They and What’s Next?
Monday, November 8, 2021
Antitrust: Hart-Scott-Rodino Act
Tuesday, November 2, 2021
Deceptive or Misleading Conduct & Consumer Protection
Monday, October 25, 2021
Bureau of Competition and FTC Operations
In the wake of the COVID-19 pandemic, product manufacturers and distributors—many of whom have pivoted to create PPE-related products for the first time—are now faced with a veritable morass of guidelines and requirements to navigate from a variety of governmental agencies. Recent enforcement actions by federal agencies have only highlighted the importance of understanding exactly how a product must be produced, advertised, labeled, and sold. This begs the important question: who is the regulator and what is the rule?
Our product risk management team has been speaking to several trade associations in September 2020 about how to navigate the alphabet soup of federal agencies supervising COVID-19 product distribution. The biggest takeaway: How a product is advertised for sale plays a critical role in how it is regulated and by which agency . The regulatory profile can mean the difference between required manufacturing registration or specific requirements as to product labeling.
This article outlines a few of the major players involved in regulating products designed to mitigate or prevent COVID-19—specifically, the Food and Drug Administration (“FDA”), Federal Trade Commission (“FTC”), and Environmental Protection Agency (“EPA”)—and discusses high-level considerations for entities who find themselves caught up in the regulatory alphabet soup.
Presidential advisor Steve Bannon famously told the Conservative Political Action Conference (CPAC) that the Trump Administration seeks to “deconstruct” the regulatory state. The President has issued several Executive Orders (EOs) on regulations designed to implement this policy, including the “two for one” EO, an EO on enforcing the regulatory agenda, and an EO on reorganizing the executive branch. The three orders collectively promote a policy of deregulation and wholesale elimination of administrative functions deemed overly burdensome to business, redundant, or outdated.
This week, the White House followed through on that agenda by publishing a proposed budget that would impose sweeping budget reductions on almost every federal agency, with the exception of the Departments of Defense and Homeland Security.
The key consumer protection agencies—the Federal Trade Commission, Federal Communications Commission, and Consumer Financial Protection Bureau—are not directly subject to any of these EOs or addressed in the President’s Budget Request. But that does not mean these agencies are in the clear in terms of budget-cutting or deregulatory efforts. Rather, it seems more likely that the administration is preoccupied with bigger fish at the moment; in the meantime, they are treading carefully. Which raises the question: what else is in store for these agencies once they regain the Trump Administration’s focus?
Traditionally, advertisers purchase ad inventory during television programs based on basic demographic information regarding viewer attributes. Thus, while ads may reach viewers of a particular gender and age range, those ads may not necessarily reach the consumers that are most interested in their products or services. Thus, advertisers are increasingly interested in more finely targeting their advertising and sending a specific television commercial to a specific household based on the viewing activities in that household. In order to pinpoint their targets, marketers rely on data extending beyond demographic information that includes information on consumer viewing and internet habits. While targeting commercials to specific households can be highly beneficial to marketers (allowing them to send their ads to the consumers most interested in seeing them) and consumers (showing them the ads they most want to see), marketers must remember that the basic requirements of advertising law still apply. Thus, in collecting data, marketers must ensure that they clearly disclose their data collection practices up front, obtain consent from consumers before collecting and sharing highly specific information regarding their viewing practices, and make it easy for consumers to opt out.
Retailers and consumer products companies need to be aware of a new law affecting negative online reviews. On December 14, 2016, President Obama signed the Consumer Review Fairness Act of 2016 (H.R. 5111) into law. The Act voids “non-disparagement clauses” in form contracts designed to prevent consumers from posting negative comments and online reviews of products and services. The Act also makes it unlawful for companies to include these clauses in their form contracts. The Federal Trade Commission will enforce the Act in the same way it enforces against unfair or deceptive trade practices under its jurisdiction; state attorneys general may also enforce the Act under certain conditions. For existing contracts, the Act will take effect in 90 days and FTC/state enforcement may commence one year from now.
Continue Reading Consumer Review Fairness Act of 2016 — Beware of the Negative Online Review
On February 12, 2016, the Federal Bar Association will host a day-long Fashion Law Conference at Parsons School of Design (Starr Foundation Hall in the New School’s stunning new University Center) on the last day of New York Fashion Week!
Speakers include in-house counsel from The Estee Lauder Companies, Inc., Tiffany & Co., New York