Key Takeaways:

  • The Federal Trade Commission (FTC) is actively using the COVID-19 Consumer Protection Act to protect consumers, with a new case alleging the defendant failed to timely deliver masks and failed to process refunds or cancellation requests. The complaint also alleges the defendant promised N95 masks but delivered cloth masks instead.
  • The FTC’s Mail Order Rule requires a seller to notify customers when a delay is discovered, make adjustments to website content to give appropriate notice, and offer the right to cancel with an adequate refund.

Continue Reading FTC Brings Action Alleging False PPE Delivery Claims

Key Takeaways:

  • The FTC’s Jewelry Guides require marketers to make clear and conspicuous disclosures to truthfully represent the origin of lab-grown diamonds and gemstones (i.e., distinguishing mined diamonds and gemstones from man-made substitutes) and otherwise comply with the Jewelry Guides (see below for additional compliance considerations).
  • Advertising claims for lab-grown diamonds and gemstones are subject to scrutiny by regulators, competitors (including adverse trade associations), and consumers, so companies should consult with legal counsel when developing any such claims.

Continue Reading National Advertising Division Weighs in on Advertising Claims Related to Lab-Grown Diamonds

Key takeaways:

  • A recent report from the House of Representatives has motivated nearly 100 false advertising cases against baby food manufacturers.
  • The cases allege that the companies sold food containing heavy metals and failed to disclose that fact.
  • The filings have prompted Food and Drug Administration and Congressional action on heavy metals in baby food and may invite additional scrutiny from regulators and plaintiffs’ counsel on trace substances in consumer product goods, beyond baby food.

Continue Reading Nearly 100 Cases Claim That Baby Food is Tainted With “Dangerous Levels” of Heavy Metals; Here’s What You Need to Know

On April 22, 2021, in a unanimous decision, the U.S. Supreme Court in AMG Capital Management v. FTC held that the authorization to seek a “permanent injunction” under Section 13(b) of the Federal Trade Commission Act does not permit the FTC to obtain equitable monetary relief such as restitution and disgorgement. While the FTC may still seek monetary relief under Sections 5 and 19 of the Act, those provisions can be more difficult for the FTC to pursue. FTC Acting Chairwoman Rebecca Kelly Slaughter is already calling on Congress to “strengthen the FTC’s powers” in light of the decision. Click here to read the full Perkins Coie Update.

On April 7, 2021, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in a closely watched web accessibility case, holding that websites do not constitute places of public accommodations under Title III of the Americans with Disabilities Act (ADA). The decision—Gil v. Winn-Dixie Stores, Inc.—represents a departure from what has been a trend toward increasingly expansive interpretations of the ADA, and it is likely to prompt renewed conversations regarding whether and how Congress or the U.S. Department of Justice (DOJ) should address the issue. Continue Reading Eleventh Circuit Rules that Websites Are Not Public Accommodations Under the ADA

On April 29, 2021, the Federal Trade Commission (FTC) will host a public workshop to examine consumer protection issues related to “dark patterns”—website and app interface features designed to subvert or impair consumer autonomy, decision-making, or choices.

In a recent statement, FTC Commissioner Rohit Chopra defined dark patterns as “design features used to deceive, steer, or manipulate users into behavior that is profitable for an online service, but often harmful to users or contrary to their intent.” According to Chopra, examples of dark patterns include “misdirection, confusing language, hidden alternatives, or fake urgency to steer people toward or away from certain choices.”  The FTC recently warned against employing a “roach motel” dark pattern scenario, specifically where it is easy for consumers to enter into a digital subscription program, but nearly impossible to escape (unsubscribe). Continue Reading FTC Announces Workshop to Address Digital “Dark Patterns”

In a published ruling, the Ninth Circuit recently held that a company potentially stated a claim for false advertising under the Lanham Act when it alleged that a product review site had significant undisclosed financial connections to a competitor while purporting to be independent. In Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021), a dietary supplement manufacturer lodged a false advertising Lanham Act claim against product review site NutriSearch, alleging that it was rigging its ratings for a competitor in exchange for financial compensation. According to the allegations, the competitor paid hundreds of thousands of dollars to NutriSearch and the website’s author, and these payments provided more than 90% of the author’s entire income. The Ninth Circuit reversed the district court’s dismissal of the plaintiff’s complaint and directed the lower court to assess whether NutriSearch made the challenged false or misleading representations “in commercial advertising or promotion.”