Phyllis H. Marcus

Firm/Organization: Hunton Andrews Kurth LLP

Blogs: Blockchain Legal Resource, Hunton Retail Law Resource

Latest Articles

FTC: Consumer Gag Clauses a No-Go

June 12, 2019

In continued enforcement of the Consumer Review Fairness Act (CRFA), the Federal Trade Commission entered consent decrees against two rental management companies that mandated non-disparaging reviews in their consumer contracts.…

Hunton Retail Law Resource

Pasta La Vista: NAD Recommends Goya Discontinue “Puerto Rico’s Favorite Pasta” Claim

By Phyllis H. Marcus & Perie Reiko Koyama

April 17, 2019

The National Advertising Division (“NAD”) has recommended that Goya Foods, Inc. toss claims that its Excelsior brand pasta is “Puerto Rico’s Favorite Pasta,” following a challenge by Goya’s competitor, Riviana Foods, Inc. Riviana, the maker of Ronzoni pasta, argued that Goya had not substantiated its “favorite” claim through consumer survey or sales data. Goya responded that its claim was classic puffery. NAD disagreed with Goya, finding that “favorite” is objectively measureable and means a product is preferred over…

Hunton Retail Law Resource

FTC Warns Cannabidiol Sellers to Stop Advertising CBD as a Cure to Serious Ailments

By Phyllis H. Marcus & Catherine Kordestani

April 11, 2019

The FTC teamed up with the U.S. Food and Drug Administration, sending warning letters to three companies: NutraPure, LLC, PotNetwork Holdings, Inc., and Advanced Spine and Pain LLC (d/b/a Relievus) that advertised CBD supplements as treatments for serious diseases such as cancer, Alzheimer’s disease, fibromyalgia and “neuropsychiatric disorders.” The two agencies told the companies to steer clear of false or unsubstantiated health claims and instructed the companies to notify the FTC within 15 days of…

Hunton Retail Law Resource

FTC Warns Jewelers about #LabGrownDiamond and “Eco-Friendly” Diamond Claims

By Phyllis H. Marcus & Catherine Kordestani

April 10, 2019

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The FTC recently sent warning letters to eight marketers of lab-created diamonds concerning implied claims on social media that their diamonds are mined (rather than simulated) and that their jewelry is “eco-friendly” or “sustainable.” The FTC’s Jewelry Guides contain specific requirements for disclosing lab-created properties and avoiding misperceptions that gems are natural. Moreover, the FTC’s Green Guides require that marketers have a reasonable basis for all express and implied environmental benefits claims.…

Hunton Retail Law Resource

FTC Emphasizes that Providing Free Products Can Bias Reviews

By Phyllis H. Marcus & Catherine Kordestani

April 9, 2019

In a case signaling that the FTC intends to continue its crackdown on review manipulation, snack company UrthBox, Inc. has reached a settlement with the FTC after allegedly misrepresenting that its customer reviews were independent, despite the fact that reviewers had been incentivized with free products and other goodies. According to the FTC, UrthBox also failed to adequately disclose to consumers key terms of its “free trial” automatic renewal programs. The settlement requires UrthBox to…

Hunton Retail Law Resource

FTC Announces July 2019 Repair Restrictions Workshop, Solicits Research and Comments

By Phyllis H. Marcus & Carter C. Simpson

March 19, 2019

The FTC has announced that it will host a workshop on July 16, 2019, called Nixing the Fix: A Workshop on Repair Restrictions, aimed at examining manufacturer restrictions on consumer and third-party product repairs and the extent to which such restrictions implicate consumer protection. The announcement lists covered topics, including the interplay between repair restrictions and consumer protection laws like those in the Magnuson-Moss Warranty Act; the impact of repair restrictions on extended warranties and…

Hunton Retail Law Resource

Advertiser Presses Snooze on NAD: Claims Referred to FTC

By Phyllis H. Marcus & Emily K. Bolles

March 4, 2019

On February 25, the National Advertising Division (“NAD”) referred Nectar Sleep’s “Limited Offer: $125 Off + 2 Free Pillows” claim to the FTC after the advertiser declined to participate in the NAD’s self-regulatory process. The complaint was brought to the NAD’s attention by challenger Tuft & Needle, LLC, who alleged that Nectar’s offer was always available to consumers, and therefore was not a “limited” offer. The challenger also complained that Nectar’s pillows are not independently…

Hunton Retail Law Resource

Thinking of Purchasing 5-Star Reviews? Think Again!

By Phyllis H. Marcus & Emily K. Bolles

February 27, 2019

On February 26, the FTC announced a settlement with a weight-loss pill company that is alleged to have purchased 5-star Amazon reviews from a third party. The settlement includes a judgment of $12.8 million (which will be suspended upon payment of $50,000 to the FTC and payment of outstanding taxes), and ongoing compliance requirements for 10 years. Notably, the settlement also requires the company to have competent and reliable scientific evidence substantiating any appetite suppressant,…

Hunton Retail Law Resource

NAD Finds Responsibility for “Made In USA” Does Not Extend to Third-Party Customer Reviews

By Phyllis H. Marcus & Christopher J. Dufek

February 7, 2019

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In a challenge brought by Aquasana, Inc., the NAD determined that Advanced Purification Engineering Corp. (APEC), a manufacturer of water filtration systems, was not responsible for substantiating or correcting “Made in USA” claims made in customer reviews posted on third-party sites.…

Hunton Retail Law Resource

Ninth Circuit Opinion Keeps San Francisco Health Warning On Ice

By Phyllis H. Marcus & Christopher J. Dufek

February 4, 2019

On January 30, 2019, the US Court of Appeals for the Ninth Circuit issued a unanimous 11-judge opinion striking down San Francisco’s ordinance mandating health warnings on ads for sugary drinks. The judicial panel found that San Francisco’s proposed law violated beverage companies’ First Amendment rights to free speech.…

Phyllis H. Marcus

FTC: Consumer Gag Clauses a No-Go

Pasta La Vista: NAD Recommends Goya Discontinue “Puerto Rico’s Favorite Pasta” Claim

FTC Warns Cannabidiol Sellers to Stop Advertising CBD as a Cure to Serious Ailments

FTC Warns Jewelers about #LabGrownDiamond and “Eco-Friendly” Diamond Claims

FTC Emphasizes that Providing Free Products Can Bias Reviews

FTC Announces July 2019 Repair Restrictions Workshop, Solicits Research and Comments

Advertiser Presses Snooze on NAD: Claims Referred to FTC

Thinking of Purchasing 5-Star Reviews? Think Again!

NAD Finds Responsibility for “Made In USA” Does Not Extend to Third-Party Customer Reviews

Ninth Circuit Opinion Keeps San Francisco Health Warning On Ice

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