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.
New York’s new automatic renewal law is just one of many state laws affecting recurring billing and subscriptions. In this episode, Jason Howell and Amanda Beane discuss compliance tips and litigation risks for businesses. Listen here.
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.”
Jason Howell, Amanda Beane and guest Lindsey Buckner from 7-Eleven discuss common challenges for in-house legal, including how to seamlessly integrate with in-house marketing teams and how to create work-life boundaries while working from home during the pandemic. Listen here.
President Biden has appointed Commissioner Jessica Rosenworcel as acting chairwoman of the U.S. Federal Communications Commission. In this role, she is expected to pursue the priorities of the new administration and begin to roll back many of the policies and rules adopted by the FCC during the Trump administration. In this client update, we examined Acting Chairwoman Rosenworcel’s published dissents and concurrences that she previously issued to provide an overview of her likely priorities for the FCC under the new administration.
On January 8, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced proposed regulations that would significantly affect how businesses selling to California consumers may use short-form Proposition 65 warnings on their products. These proposed regulations, if finalized, may create new compliance obligations and will likely decrease the use of the short-form Proposition 65 labeling in the marketplace.
- The FTC’s Enforcement Policy on S. Origin Claims and related compliance guide apply to advertising of “Made in USA” or similar U.S. origin claims, including manufacturer advertisements of private label products to trade customers who will later market and sell such products under retail brand names.
- The $1.2 million settlement is the largest obtained by the FTC in a Made in USA case and reinforces prior signals that the agency will continue to seek monetary penalties when enforcing against allegedly deceptive Made in USA
- Marketers should strive to advertise the specific environmental product benefits that are well-supported in order to avoid communicating an overbroad “general environmental benefit” claim that cannot be supported, consistent with the FTC’s Green Guides.
- Environmental claims and comparative advertising claims are subject to scrutiny by regulators, competitors, and consumers, so consult with legal counsel when developing such claims.