All About Advertising Law

Regulatory and Litigation Developments for Advertisers and Marketers

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Managing Risks in Third-Party Sender ACH Processing

By Andrew E. Bigart, Evan R. Minsberg & Matthew Bornfreund

December 14, 2020

With much of the economy disrupted as a result of the COVID-19 pandemic, one area that continues to grow is automated clearing house (ACH) payments, according to data recently released by Nacha, the non-profit that governs ACH payments. While the recent jump in ACH volume was driven in part by the delivery of federal stimulus payments, it is reflective of a longer term trend of growth in the industry, as ACH becomes increasingly popular for…

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Third Bite at the Apple – FTC Administrative Proceeding Signals a Relentless Pursuit Against Supplement Marketers

By Leonard L. Gordon & Nikita Bhojani

December 7, 2020

The FTC routinely pursues dietary supplement makers for making allegedly deceptive or unsubstantiated claims, and most of those investigations are resolved through settlements. The FTC’s recent unsuccessful efforts to bring a contempt action regarding one of those settlements and its decision to then challenge the alleged contemptuous conduct in an administrative proceeding provide interesting insights into FTC settlements and the FTC’s relentless pursuit of companies that fall into disfavor. On November 20, 2020, the FTC…

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FTC Commissioner Encourages Partnership with CFPB and “Systemic” Change Following FTC Action against Debt Collection Scheme

By Leonard L. Gordon, Mary M. Gardner & Katelyn J. Patton

December 4, 2020

On November 30, 2020, the Federal Trade Commission (FTC) announced that it had taken action against a debt collection company, Midwest Recovery Systems (“Midwest”), alleging that an alleged “debt parking” scheme caused more than $24 million in harm to consumers. While the complaint and settlement themselves are not that remarkable, the dissent filed by Commissioner Chopra is. Commissioner Chopra challenges the FTC’s approach to debt collection, suggesting the FTC refer such cases to the Consumer…

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Don’t Fake It Till You Make It: Company’s False Advertising Costs Them

By Alexandra Megaris & Deborah Bessner

December 1, 2020

On November 10, 2020, the District of Utah decided a case involving two sellers of supplements, Vitamins Online, Inc. v. Heartwise Inc. d/b/a NatureWise, which, among other things, examined defendant NatureWise’s allegedly manipulated reviews on a major online marketplace. In deciding the case, the court addressed customer reliance on reviews in their purchasing decisions. NatureWise’s reviews appeared manipulated. For example, on one of NatureWise’s product pages, reviews were posted before the product had launched. Many…

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FTC Commissioner Seeks to Resurrect Penalty Offense Authority

By Leonard L. Gordon, Mary M. Gardner & Michael A. Munoz

November 11, 2020

At the end of last month, FTC Commissioner Rohit Chopra and his attorney advisor, Samuel Levine, penned an article, “The Case for Resurrecting the FTC Act’s Penalty Offense Authority.” In the article, the authors posit that, because the FTC’s “ability to seek monetary relief through Section 13(b) is now in jeopardy,” the FTC should “resurrect one of the key authorities it abandoned in the 1980s”—the Penalty Offense Authority under Section 5(m)(1)(b) of the…

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Getting the Yardage: District Court Locks in on Rangefinder Company’s False Claims

By Leonard L. Gordon & Michael A. Munoz

October 30, 2020

A case about golf and advertising was too good for us not to write about. Recently, the U.S. District Court for the Central District of California issued a tentative preliminary injunction against GolfzonDeca, Inc. for marketing its GolfBuddy rangefinder. For you non-golfers, a rangefinder is a device that tells a golfer how far they are from the hole or other point on the course.[1] Golfers continually strive for equipment that might help them lower…

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FTC Commissioner Warns Larger Companies and Payment Processors, Seeks Greater Financial Penalties

By Leonard L. Gordon, Ellen T. Berge & Mary M. Gardner

October 30, 2020

On October 19, 2020, the Federal Trade Commission issued its annual report to Congress regarding the FTC’s efforts to protect senior citizens from fraud and abuse. In the report, the FTC noted that adults over 60 are more likely to report losing money to certain types of alleged scams, including romance scams, imposter scams, and online shopping programs. Moreover, the FTC reports that seniors were more than six times more likely than younger consumers to…

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Ad Law in the Age of COVID-19 and Regulatory Reactions

By Melissa Landau Steinman & Kristen R. Klesh

October 20, 2020

The COVID-19 crisis has spawned a new wave of predatory behavior toward consumers, with the marketing of coronavirus-related products and untested cures. Regulators have responded to these behaviors swiftly and in a variety of ways. Richard Cleland, assistant director – division of advertising practices at the Federal Trade Commission (FTC), and Venable attorneys Melissa Steinman and Kristen Klesh addressed the advertising enforcement trends stemming from the COVID-19 pandemic and offered their reflections on best practices…

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A Fireside Chat and Crystal Ball Readings with FTC Attorney Advisors

By Eric S. Berman & Daniel S. Blynn

October 12, 2020

Venable attorneys Eric Berman and Dan Blynn hosted a virtual fireside chat with attorney advisors to four current Federal Trade Commission (FTC) commissioners. Touching on each commissioner’s background and enforcement priorities, the FTC attorney advisors offered insights into best practices and insider perspectives on interacting with the FTC through a series of questions and answers, posed by the Venable team and submitted by audience members. Each panelist spoke on their own behalf, and not on…

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Disgorgement Denied: Third Circuit Hands FTC a Tough Pill to Swallow Over Section 13(b) Authority

By Leonard L. Gordon, Mary M. Gardner & Michael A. Munoz

October 1, 2020

Yesterday, the Third Circuit issued an opinion in Federal Trade Commission v. AbbVie, Inc., joining the Seventh Circuit in holding that the FTC is not entitled to seek disgorgement under Section 13(b) of the FTC Act. The decision reflects a potential turning of the tides on how courts view FTC’s statutory authority to seek monetary relief. By way of background, the district court ordered the AbbVie defendants to disgorge $448 million in alleged ill-gotten…

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Regulatory and Litigation Developments for Advertisers and Marketers

Managing Risks in Third-Party Sender ACH Processing

Third Bite at the Apple – FTC Administrative Proceeding Signals a Relentless Pursuit Against Supplement Marketers

FTC Commissioner Encourages Partnership with CFPB and “Systemic” Change Following FTC Action against Debt Collection Scheme

Don’t Fake It Till You Make It: Company’s False Advertising Costs Them

FTC Commissioner Seeks to Resurrect Penalty Offense Authority

Getting the Yardage: District Court Locks in on Rangefinder Company’s False Claims

FTC Commissioner Warns Larger Companies and Payment Processors, Seeks Greater Financial Penalties

Ad Law in the Age of COVID-19 and Regulatory Reactions

A Fireside Chat and Crystal Ball Readings with FTC Attorney Advisors

Disgorgement Denied: Third Circuit Hands FTC a Tough Pill to Swallow Over Section 13(b) Authority

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