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  • Advertising and Promotion (Federal Trade Commission)

    • FTC Announces a Proposed Rule for Made in the USA; Does It Go Beyond Its Authority?June 30th, 2020

      As we previously reported, the Made in the USA claim, as a voluntary claim on consumer goods, including products under FDA jurisdiction such as foods, over-the-counter drugs, and cosmetics, continues to be a popular advertising claim.  Generally, FTC enforcement actions regarding unqualified Made in the …

    • Much-Needed Clarity on Disgorgement from the Supreme CourtJune 24th, 2020

      A Supreme Court decision this week shows good potential to upend FDA and FTC’s claim that they can without limits seek disgorgement of “profits” from defendants who engage in unlawful activities.  In Liu v. Securities and Exchange Commission, the question was whether the SEC could …

    • Swift Enforcement Against COVID FraudstersMay 1st, 2020

      Since HHS declared a public health emergency caused by COVID-19 in February 2020, there has been an overwhelming response to develop and market products to treat or mitigate the effects of the virus.  Unfortunately, bad apples still are out there preying upon consumer fears and …

    • The FTC’s Teami Case: “All [the FTC] really wanna see is the money.”March 12th, 2020

      Last Thursday, March 5, 2020, the FTC filed a formal complaint alleging deceptive marketing practices against tea and skincare company, Teami, LLC, and its co-founders, as well as a stipulated order for permanent injunction and monetary judgment.  In conjunction with the filings, the FTC also …

    • Affirmative Defenses: What’s Going to Stick to the Wall?March 11th, 2020

      The recent opinion in FTC v. Quincy Bioscience Holding Co., 2020 U.S. Dist. LEXIS 36424*(S.D.N.Y. Mar. 2, 2020) (background here) is a primer on affirmative defenses in an FTC Act case alleging deceptive advertising of a dietary supplement.  The FTC and State of New York …

    • FTC Seeks Public Comment on its Endorsement GuidesFebruary 20th, 2020

      At a time when some influencers are making good money – and sometimes millions of dollars – for endorsing and promoting everything from fake eyelashes on Instagram to the latest video game on YouTube, the Federal Trade Commission (FTC) announced on February 12, 2020 that …

    • Petition for Formal Rule re Made in USA ClaimsSeptember 25th, 2019

      On August 22, 2019, the consumer advocacy organization Truthinadvertising.org (“TINA.org”) submitted a Petition to the Federal Trade Commission (“FTC”), requesting that FTC promulgate regulations for Made in the USA claims.  As further explained in the Petition, a formal rule purportedly would facilitate FTC enforcement by …

    • It Was Too Good to Last; 2nd Circuit Overturns District Court’s Dismissal of FTC’s Complaint against Marketers of PrevagenMarch 4th, 2019

      On February 21, the U.S. Court of Appeals for the Second Circuit issued a summary order reversing the dismissal by the District Court of the Southern District Court of New York of an action by FTC and New York State (“FTC”) action challenging the marketing …

    • Joint Action by FDA and FTC Against Companies Marketing Unapproved Opioid Cessation ProductsJanuary 31st, 2018

      On January 24, 2018, FDA and the Federal Trade Commission (FTC) posted joint warning letters to 11 marketers and distributors of opioid cessation products, alleging that those products were unapproved new drugs that violated the Federal Food, Drug, and Cosmetic Act (FDC Act) and made …

    • Fifth Circuit Upholds Summary Judgment for Solvay Pharmaceuticals in Off-Label and Anti-Kickback FCA CaseSeptember 20th, 2017

      It is the False Claims Act (FCA) case that wouldn’t die. The complaint in United States ex rel. King v. Solvay Pharmaceuticals, Inc. was originally filed in 2006 in the U.S. District Court for the Southern District of Texas. Through a series of partial summary …

    • The FTC Grants Summary Decision in Proceeding Regarding All Natural SunscreenDecember 13th, 2016

      As we previously reported, in April 2016, the FTC announced several settlements regarding all natural claims for cosmetic products.  In addition, the FTC filed an administrative complaint against California Naturel, Inc., (the Company) for falsely advertising its sunscreen product as “all natural” in violation of …

    • How Will FDA Under @realDonaldTrump Regulate Speech?December 6th, 2016

      Most of our readers come to the blog to read posts that are well-researched, provide thoughtful analysis, and often practical advice. This is not that post.   This is a post that will be filled with rank speculation, perhaps a little wishful thinking, and a soupçon of …

    • FTC Announces Settlement with Herbalife; Consent Decree Sets Parameters for a Legal Multilevel Marketing BusinessJuly 20th, 2016

      By Riëtte van Laack –   Last week, FTC announced a settlement agreement with Herbalife International of America Inc., Herbalife International, Inc. and Herbalife Ltd. (Herbalife) under which Herbalife is to pay 200 million dollars and restructure its business (see FTC press release here). In the Complaint …

    • FTC Announces a Workshop on the Effectiveness of Consumer DisclosuresMay 25th, 2016

      By Jenifer R. Stach – The Federal Trade Commission announced that it will host a workshop, “Putting Disclosures to the Test” at the Constitution Center, 400 7th St SW, Washington, DC 20024 on September 15, 2016.  The FTC stated that “[e]ffective disclosures are critical in helping consumers …

    • FTC Issues Policy Statement Regarding Native Advertising; Transparency about the Commercial Nature of Advertising Is KeyDecember 29th, 2015

      By Riëtte van Laack – “Native advertising” is advertising that looks like “news, feature articles, product reviews, entertainment, and other material surrounding it.” In the digital context, native advertising constitutes marketing material that is designed to mimic the look and feel of the host website. It …