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:

  • The Children’s Advertising Review Unit has released new guidelines for children’s advertising, moving beyond traditional TV advertising, to address a broader range of digital advertising issues.
  • The updated Guidelines go into effect on January 1, 2022 and apply to advertising that is primarily directed to children under age 13 in any medium or content.


Continue Reading CARU Updates Children’s Advertising Guidelines

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

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

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

On June 25, 2020, the Federal Trade Commission (FTC) announced a $22 million settlement with the marketers of a low-level light therapy device called Willow Curve to enjoin them from making unsubstantiated and deceptive claims about the device’s ability to treat chronic, severe pain and associated inflammation. The settlement comes amid ongoing attention from the FTC and state attorneys general regarding false and deceptive advertising relating to pain products (such advertising is largely reactive to the opioid crisis). It also represents another enforcement action involving “native advertising,” in which paid advertisements are formatted to appear as independent content—a practice that the FTC finds deceptive without clear disclosure.
Continue Reading FTC Enters Into $22 Million Settlement With Manufacturer of Willow Curve Regarding Unsubstantiated Pain Relief Claims and Deceptive Native Advertising

As part of its routine monitoring program, the National Advertising Division (NAD) recently announced several decisions involving social media posts that advertised products as having health benefits that could help protect against COVID-19. The NAD’s inquiries are consistent with similar efforts by the Federal Trade Commission (FTC) intended to combat false and misleading advertising in connection with the pandemic. In its decisions, the NAD noted that it shares the FTC and FDA concerns related to advertising that touts a product can treat or protect consumers from COVID-19 and is therefore using its monitoring resources to identify misleading health claims.
Continue Reading NAD Uses Monitoring to Discourage Misleading COVID-19 Health Claims

The Federal Trade Commission (FTC) recently announced a settlement with online fashion retailer, Fashion Nova, requiring it to pay $9.3 million in refunds to consumers for violations of the FTC’s Mail, Internet, or Telephone Order Merchandise Rule (“Mail Order Rule”).

In its complaint, the FTC alleged that Fashion Nova (1) made false representations to consumers about the speed of its shipping and (2) failed to refund consumers for items that were never shipped.  For example, according to the complaint, Fashion Nova regularly advertised “Fast Shipping, “2-Day Shipping,” “Fast International 6-10 Shipping,” and “Expect Your Items Quick!,” but regularly did not meet these promises or notify consumers of shipping delays.  Also, instead of issuing refunds to consumers for orders that were never shipped, Fashion Nova issued gift cards, which do not qualify as appropriate refunds under the Mail Order Rule.
Continue Reading Fashion Nova Settles with FTC for $9.3 Million for Alleged Violations of the Mail Order Rule