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Mark S. Goodrich

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Mark Goodrich provides guidance on a variety of advertising compliance matters and helps brands navigate complex state, federal and local advertising, promotion and consumer protection laws. Mark’s experience includes counseling related to claim substantiation, endorsements and testimonials, deceptive pricing, discount or coupon offers, negative option or “automatic renewal” of subscriptions, cause marketing, online disclosures, intellectual property rights, free offers, native advertising, and other Federal Trade Commission (FTC) rules and guidelines. He also frequently drafts rules for contests, sweepstakes and related games, and provides counsel on how to structure promotions to comply with state and federal laws.

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Key Takeaways:

  • On October 4, 2021, California passed an amended automatic renewal law that will require businesses to follow stricter cancellation and notice requirements for subscription-based products and services.
  • The updated law goes into effect on July 1, 2022.

Continue Reading California Passes Updated Automatic Renewal Law

Key Takeaways:

  • FTC sends Notice of Penalty Offenses to advertisers warning that unfair and deceptive acts and practices related to endorsements could trigger penalties of up to $43,792 per violation.
  • Advertisers should review and refresh their policies, trainings, and compliance programs for endorsements, influencers, and consumer reviews to ensure compliance with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides) and related FTC guidance and notices.

Continue Reading FTC Issues Notice of Penalty Offenses Warning Companies to Comply with Endorsement Requirements

Key Takeaways:

  • The FTC is prioritizing investigations into and actions against false and misleading advertisements in healthcare markets.
  • Companies with healthcare products, especially those advertising medical treatments, should take care to ensure they do not overstate the efficacy of those treatments and back up advertising with necessary scientific evidence.

Continue Reading FTC Follows Through on Prioritizing Investigations into False Advertising in Healthcare Markets

Key Takeaways:

  • Brands should honor advertised product benefits and avoid techniques to block product use.
  • Under the Restore Online Shoppers’ Confidence Act (and state auto-renewal laws), advertisers must disclose material terms and conditions and obtain consumers’ express consent before charging a payment card or account.

The FTC and MoviePass recently settled related to allegations that the company used deceptive tactics to prevent subscribers from using its service and insecurely held subscribers’ private information. The FTC’s complaint alleged that MoviePass used three tactics, described below, in a perceived attempt to save money on their $9.95 per month subscription service that was advertised as providing unlimited access to certain films in theaters.

Limiting Subscribers’ Usage: The FTC alleged that MoviePass, its parent company Helios and Matheson Analytics, Inc. (Helios), and its principals Mitchell Lowe and Theodore Farnsworth, scrambled at the high demand for the subscription service and took steps to prevent users from receiving the advertised “one movie per day” that they had paid for in order to cut costs. The FTC listed the following deceptive or unfair tactics that MoviePass operators allegedly engaged in to set up roadblocks for consumers:
Continue Reading MoviePass Settles with the FTC Regarding Limitations on Subscribers’ Usage

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:

  • 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

Continue Reading FTC and Glue Maker Reach $1.2 Million Settlement Over Deceptive “Made in USA” Claims

Key Takeaways:

  • 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.

Continue Reading NAD Recommends Modifications to Blueland’s Environmental and Comparative Claims

Key Takeaways:

  • Marketers should continue to ensure that all health claims are supported by competent and reliable scientific evidence. While the scientific community’s understanding of COVID-19 is still relatively new, marketers should be particularly careful making any express or implied advertising claims related to COVID-19.
  • NAD continues to monitor and challenge misleading health claims related to COVID-19. NAD will refer these claims to the FTC and FDA as needed.

Continue Reading NAD Refers Implied COVID-19 Claims to FDA and FTC When Marketer of Dietary Supplement Fails to Respond to Inquiry