On June 3, 2022, the FTC made a request for comments about .com disclosures, including the increased use of dark patterns, manipulative user interface design, and other forms of digital deception that pose unique risks to consumers online and in the mobile space. The FTC is considering updating and reissuing its guidance document “Dot Com Disclosures: Information about Online Advertising,” last revised in March 2013.

Continue Reading FTC Seeking Public Input to Modernize Digital Advertising Guidance

In a 5-4 decision, the U.S. Supreme Court vacated the U.S. Court of Appeals for the Fifth Circuit’s stay of a temporary injunction in NetChoice, LLC v. Paxton, a closely watched case involving a novel Texas law purporting to bar “social media platforms” from engaging in “viewpoint” discrimination. The majority did not issue a written opinion, but Justice Samuel Alito authored a dissent that was joined by Justice Clarence Thomas and Justice Neil Gorsuch. The May 31, 2022, ruling is a win for the world’s largest online social media platforms, albeit a temporary one. The decision reinstates a temporary injunction barring the Texas attorney general from enforcing the Texas law, known as H.B. 20. The decision does not prevent users from suing covered platforms under H.B. 20’s private right of action.

This update summarizes the Texas law, the history of the litigation leading to the Supreme Court’s decision, and the Supreme Court’s decision yesterday. It also briefly forecasts the near future for state and private enforcement of H.B. 20.

Read the full update here.

We are proud to announce that Chambers & Partners has recognized Perkins Coie’s Advertising: Transactional & Regulatory Nationwide practice as one of the premier practices in the field.

Partner Jason Howell was also ranked again in the 2022 edition of Chambers USA: America’s Leading Lawyers for Business in the Nationwide Advertising: Transactional & Regulatory space.

London-based Chambers & Partners publishes directories that assess and rank the world’s leading attorneys. The Chambers USA rankings result from extensive surveys and interviews of in-house counsel and leading law firm partners.

To encourage transparency and compliance with the Federal Trade Commission (FTC) Act and address current practices and trends, the FTC first published the Guides Concerning the Use of Endorsements and Testimonials in Advertising (Guides) in 1980 and then amended them in 2009. The Guides reflect the FTC’s position on applying the FTC Act to endorsement-related issues.

Continue Reading FTC Proposes Updated Guidance for Influencer and Consumer Review Programs

Key Takeaways:

  • On April 12, 2022, the Federal Trade Commission (FTC) used its authority under the new Made in USA Labeling Rule to bring a complaint against a battery seller for allegedly misrepresenting that its lithium ion cells were made in the USA, seeking over $100,000 in penalties.
  • The Made in USA Labeling Rule codified pre-existing Made in USA guidance and was enacted in August 2021 to allow the FTC to more easily seek monetary penalties in connection with Made in USA violations.
Continue Reading FTC Seeks to Enforce “Made in USA” Labeling Rule in Complaint Against Battery Seller

Many companies use browsewrap or related sign-in agreements to present their terms of service for consumer acceptance. On April 5, 2022, the U.S. Court of Appeals for the Ninth Circuit refined the standard for enforcing terms of service presented on websites via hyperlinks. The decision affects how companies should design their webpages and present their terms of service to ensure that those terms—including their accompanying arbitration agreements, class-action waivers, product licenses, and warranty disclaimers—are enforceable.

Read more

On March 18, 2022, the U.S. Department of Justice (DOJ) issued new guidance (Web Accessibility Guidance) advising state and local governments and businesses open to the public on how to make their websites accessible to people with disabilities, based on the understanding that the Americans with Disabilities Act (ADA) applies to web content. The Web Accessibility Guidance represents the latest articulation of the DOJ’s position on this issue, and it may portend future regulatory enforcement and rulemaking activity in the web accessibility space.

Continue Reading Justice Department Issues ADA Web Accessibility Guidance

Key Takeaways:

  • The Federal Trade Commission (FTC) issued two new guides for platforms and marketers to help ensure transparency in online reviews and address soliciting, moderating, and reporting reviews, and the use of third-party “reputation boosting” services.
  • The FTC has actively enforced against companies responsible for publishing deceptive reviews and blocking honest reviews, and recently announced a proposed $4.2 million settlement with online retailer Fashion Nova over the retailer’s practice of review-gating.

Continue Reading FTC Guidance for Platforms and Marketers Utilizing Online Customer Reviews

Jason Howell and Amanda Beane talk with Janis Kestenbaum, partner at Perkins Coie and former Federal Trade Commission (FTC) attorney, about the makeup and direction of the FTC as it relates to advertising and marketing law. They focus on how the aggressive tendencies of the current commission will affect marketing and advertising-related enforcement trends.

Listen to “FTC Enforcement Hot Topics – Episode 9” on Spreaker.

Note that all episodes are available on Apple Podcast and Spotify.

Key updates:

  • The U.S. Court of Appeals for the Eleventh Circuit has declined to reconsider its decision to vacate the trial court’s judgment in Gil v. Winn-Dixie Stores, Inc., ending litigation on one of the most significant website accessibility cases in the country. See our recent blog post regarding previous developments.
  • On February 28, 2022, almost 200 advocacy groups, led by the American Council of the Blind and others, published a “Joint Letter to Enforce Accessibility Standards” to the head of the U.S. Department of Justice (DOJ) Civil Rights Division.

Continue Reading Eleventh Circuit Denies Rehearing in ADA Website Accessibility Case