All About Advertising Law

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The FTC has long claimed expansive authority under the FTC Act to obtain injunctions and monetary judgments. Its claim to that expansive authority is somewhat creative, however, and has always rested on a shaky foundation. Litigants have begun taking aim at that claimed authority. In recent blog posts, we have written about challenges to the prevailing standard that governs when the FTC can obtain an injunction. Such challenges are enjoying some measure of success; important…
On November 8, 2018, the Federal Trade Commission (“FTC”) held a press conference to announce a lawsuit against what it claims is the largest real estate scam the FTC has ever encountered. According to the FTC Complaint, through false claims in its marketing materials and sales pitches, the Sanctuary Belize Enterprise (“SBE”) took in more than $100 million through its sale of lots in what was meant to become a luxury development equipped with…
The Commissioners of the FTC agreed, during an oversight hearing on November 27, 2018, to investigate the use of “loot boxes” in video games. Senator Hassan (D-NH), following up on questions she asked the newly appointed Commissioners during their confirmation hearings, specifically requested the FTC investigate loot boxes citing addiction concerns, (especially as it relates to children) and the resemblance of loot boxes in video games to gambling. A loot box is a digital…
A few years ago, tech companies were confronted with a common complaint from parents: their children were inadvertently spending lots of money on in-app purchases while using children’s apps. Although this led to the implementation of expanded parental control settings, children’s app developers stayed the course. Last month, however, three senators asked the FTC to investigate the use of potentially manipulative marketing practices in apps designed for children. In a joint letter to the Commissioners
Previously on the blog, we noted that federal government agencies don’t always play well together. So, when these agencies synchronize their efforts, the industry would do well to take notice. One such coordination effort is well underway. The FDA and the USDA just announced that they will jointly oversee cell‑cultured food production derived from livestock and poultry. The FDA and the USDA’s announcement follows the agencies’ October 2018 public meeting, where they met…
On November 14, the FTC Commissioners, in an opinion authored by Chairman Simons, issued an opinion in an antitrust case involving the online advertising industry that has important implications for online advertisers. Last November, we discussed the initial decision by FTC ALJ Chappell that 1-800 Contacts had violated Section 5 of the FTC Act by coming to agreements with its competitors limiting their abilities—as well as 1-800 Contacts’ ability—to bid on each other’s trademarks…
We love us some Jim Croce here at Venable and his 1972 ballad, Operator (That’s Not the Way It Feels), is resonating with us right now. In Operator, Croce sings about a man confessing to an operator about his love for an ex-girlfriend. He needs the operator’s help to find a telephone number for his ex, as she’s moved on and she is no longer at the number he has for her. Ironically, if the…
Whether merchants can charge consumers who pay with a credit card more and how that increase in price is described has been the subject of extensive litigation. According to a divided New York Court of Appeals, New York’s anti-surcharge law, which banned merchants from imposing a surcharge on credit customers, does not actually prohibit a merchant from charging more or characterizing the difference in price for cash versus credit as a “surcharge” as long…
Recently, we wrote about new faces at the FTC, which, for the first time in its history, has five new Commissioners in a calendar year. This unprecedented change has cast some uncertainty on how the FTC will approach consumer protection enforcement. Recent actions by the Commission, however, indicate that despite new leadership, the Commission’s focus will be largely unchanged. Unsubstantiated health claims and unauthorized billing appear to remain high on the FTC’s list of priorities.…
The Federal Trade Commission (“FTC”) recently settled a case against a physician and his two clinics over allegedly deceptive and unsubstantiated claims relating to their “amniotic stem cell therapy.” The physician, Dr. Bryn Jarald Henderson, frequently appeared in his companies’ advertisements and claimed that this therapy, which purported to use stem cells derived from amniotic fluid, could treat diseases such as Parkinson’s disease, autism, macular degeneration, cerebral palsy, and multiple sclerosis. The proposed settlement order