Tag Archives: FTC

FTC Finalizes Updates to Endorsement Guides, Reflecting Increased Focus on Online Reviews and Social Media Marketing

This week the FTC announced that it finalized its revisions to the Endorsement Guides, which give advertisers guidance on ensuring that their use of endorsements or testimonials complies with the FTC Act. At the same time, the FTC also announced an updated accompanying guidance document, “FTC’s Endorsement Guides: What People are Asking.” While the revised … Continue Reading

Proskauer Panel on Environmental Advertising Claims at ANA

By Jeff Warshafsky, Nicole Sockett and Jennifer Yang on September 9, 2022 Posted in Events and Announcements, NAD/NARB/CARU/ERSP

Please join us on Tuesday, September 13, for a Proskauer panel at ANA covering the latest legal developments related to environmental advertising claims. Our panelists, Jeff Warshafsky, Jennifer Yang, and Nicole Sockett, will discuss carbon offsets and lifecycle assessments, recyclability and recycled content claims, general environmental benefit claims, and other key takeaways from the FTC … Continue Reading

“Born in the USA”?: Place of Origin Claims Take Center Stage in False Advertising Suits and FTC Enforcement

By Baldassare Vinti, Anisha Shenai-Khatkhate and Briana Seyarto Flores on September 7, 2022 Posted in Deceptive Trade Practices, FTC, Labeling Claims

It has been almost forty years since Bruce Springsteen first famously celebrated being “Born in the USA.” From an advertising industry perspective, this song’s lasting popularity is no surprise; as advertisers know, “Made in the USA” is often a selling point for American industries. The FTC knows this too. In late 2021, the FTC finalized … Continue Reading

A Slammed (Open)Door: FTC Reaches $62 Million Proposed Settlement with Real Estate Company

By Baldassare Vinti, Jeff Warshafsky and Jana R. Ruthberg on September 6, 2022 Posted in Deceptive Trade Practices, FTC, Regulatory

Last month, the FTC announced that it reached a $62 million proposed settlement with Opendoor Labs, related to the Commission’s investigation of the company’s representations in advertising to prospective home sellers. Opendoor is an online real estate business in the “iBuying” (or “instant buying”) space. iBuying companies use algorithms to determine a home’s value and … Continue Reading

On Notice: Disclosing Unexpected Material Connections in Advertising

By Baldassare Vinti, Anisha Shenai-Khatkhate and Jessica Griffith on January 13, 2022 Posted in Deceptive Trade Practices, FTC, Social Media

In this final installment of our “On Notice” series about the FTC’s Notice of Penalty Offenses Concerning Endorsements, we discuss when and how to properly disclose the existence of a material connection between an advertiser and an endorsing party. Per the FTC’s Notice of Penalty Offenses, “[i]t is an unfair or deceptive trade practice to … Continue Reading

On Notice: Unsubstantiated or Unrepresentative Testimonials

By Baldassare Vinti, Jennifer Yang and Amy Gordon on January 12, 2022 Posted in Deceptive Trade Practices, FTC

Continuing our “On Notice” series about the FTC’s Notice of Penalty Offenses Concerning Endorsements, we address the FTC’s prohibition against using testimonials to (1) make or imply unsubstantiated or otherwise deceptive performance claims even if such testimonials genuinely reflect the endorser’s own experience, and (2) misrepresent explicitly or implicitly that the experience described by endorsers … Continue Reading

On Notice: Continued Use of Endorsements

By Baldassare Vinti, Jennifer Yang and Anisha Shenai-Khatkhate on December 10, 2021 Posted in Deceptive Trade Practices, FTC

Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the FTC’s statement that it is unlawful under Section 5 of the FTC Act “for an advertiser to continue to advertise an endorsement unless the advertiser has good reason to believe that the endorser continues to subscribe to the views … Continue Reading

On Notice: Misattributed, False, or Mischaracterized Endorsements

By Baldassare Vinti, Jeff Warshafsky, Anisha Shenai-Khatkhate and Alyson Tocicki on November 16, 2021 Posted in Announcements, Deceptive Trade Practices, FTC, NAD/NARB/CARU/ERSP, Regulatory

Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the issues of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Notice as unfair or deceptive. In particular, the FTC stated that: It is an unfair or deceptive trade practice to make claims which … Continue Reading

On Notice: Procedural Overview of the FTC’s Section 5 Penalty Offense Authority

By Lawrence Weinstein, Jennifer Yang and Timothy E. Burroughs on October 29, 2021 Posted in FTC, Regulatory

As discussed in our earlier post, on October 13, 2021, the FTC issued “Notice of Penalty Offenses” letters to more than 700 companies, placing them on notice of civil penalties up to $43,792 per violation if they use endorsements or testimonials in an unfair or deceptive manner. These letters are the first step for the … Continue Reading

On Notice: FTC Issues Warning to Hundreds of Companies Regarding the Use of Fake Reviews and Other Misleading Endorsements in Online Marketing Campaigns

By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on October 18, 2021 Posted in Announcements, Deceptive Trade Practices, FTC, Regulatory

Prompted by the proliferation of social media advertising that often blurs the line between authentic content and sponsored posts, the Federal Trade Commission last week sent more than 700 companies a Notice of Penalty Offenses warning them against the use of deceptive endorsements in their online advertising. The Notice advises recipient companies that engaging in … Continue Reading

Third Circuit Affirms Decision to Reject FTC’s False Advertising Claims Against Housing Insulation Company

By Lawrence Weinstein, Jennifer Yang and Anisha Shenai-Khatkhate on August 17, 2021 Posted in Deceptive Trade Practices, Regulatory

A Third Circuit panel recently affirmed a Pennsylvania district court decision in favor of defendant Innovative Designs (“IDI”) in an advertising challenge by the FTC. We previously blogged about the district court decision, which found the FTC failed to present any credible expert testimony to support its claims. On appeal, the Third Circuit panel affirmed, … Continue Reading

Court Considers FTC’s Ability to Seek Monetary Relief Post-AMG

By Lawrence Weinstein, Jennifer Yang and Amy Gordon on August 5, 2021 Posted in Deceptive Trade Practices, Regulatory

Earlier this year, we blogged about the Supreme Court’s decision in AMG v. FTC, which significantly curtailed the FTC’s ability to seek monetary restitution under Section 13(b) of the FTC Act. One quick update there: The U.S. House of Representatives recently voted to restore the FTC’s Section 13(b) disgorgement powers. For now, though, in the … Continue Reading

FTC Workshop: “Bringing Dark Patterns to Light”

By Lawrence Weinstein, Baldassare Vinti, Jennifer Yang, Nicole Sockett and Jessica Griffith on May 5, 2021 Posted in Deceptive Trade Practices, Regulatory

The FTC recently held a workshop titled “Bringing Dark Patterns to Light,” a recording of which can be found at the following link. The workshop centered around exploring the effects of digital “dark patterns” on consumers and the marketplace. The term “dark patterns” refers to a range of potentially deceptive website design tactics that can … Continue Reading

Supreme Court Curtails FTC Power to Seek Restitution in Court

By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on April 23, 2021 Posted in Deceptive Trade Practices, Regulatory, Supreme Court

A unanimous Supreme Court yesterday significantly curtailed the FTC’s ability to obtain the equitable monetary remedies of restitution and disgorgement of profits from entities accused of engaging in deceptive practices in violation of the FTC Act. In so holding, the Court drew heavily on its interpretation of the language and history of that statute in … Continue Reading

Judge Has No “Reservations” Dismissing Advertising Suit Against Omni Hotels

By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on January 21, 2021 Posted in Class Actions, Deceptive Trade Practices

Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California recently dismissed with prejudice a putative class action alleging that the Omni luxury hotel chain deceptively advertised its hotel room rates on Expedia. In doing so, the Court found plaintiff failed to adequately allege that reasonable consumers would be deceived … Continue Reading

2020 Advertising Law Year in Review

By Lawrence Weinstein, Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on January 12, 2021 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Lanham Act, NAD/NARB/CARU/ERSP, Regulatory

While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of … Continue Reading

Court Gives Cold Shoulder to FTC’s False Advertising Claims Against Housing Insulation Company

By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on December 15, 2020 Posted in Deceptive Trade Practices, Regulatory

In a dispositive decision during a bench trial, federal district court Judge Nora Fischer of the Western District of Pennsylvania found that the FTC failed to present any credible expert testimony to support its suit for false advertising, and entered judgment for Defendant Innovative Designs (“IDI”). FTC v. Innovative Designs, No. 16-1669 (W.D. Pa. Sept. … Continue Reading

As Challenges to Recycling Claims Rise, Use Caution When Giving the “Green” Light

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on December 3, 2020 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, NAD/NARB/CARU/ERSP, Regulatory

NPR and PBS recently released an attention-grabbing investigation titled “How Big Oil Misled The Public Into Believing Plastic Would Be Recycled.” According to the investigation, beginning in the late 1980s, “big oil” began a $50 million-a-year ad campaign promoting the benefits of plastic, while simultaneously informing the public that plastic is recyclable. In fact, according … Continue Reading

Chambers Pharmaceutical Advertising 2019: USA

By Lawrence Weinstein, Alexander Kaplan and Carl Mazurek on May 21, 2019 Posted in Events and Announcements, Regulatory

Proskauer partners Lawrence Weinstein and Alexander Kaplan wrote the book – 11 chapters of it – on U.S pharmaceutical advertising law. The 2019 Chambers Global Practice Guide: Pharmaceutical Advertising is a great, curated resource for drug companies, hospitals, medical practices and other U.S. health care organizations. The guide provides insight to topics such as: FDA and … Continue Reading

FTC Statistics Confirm Risks to Advertisers of Refusing to Participate in NAD Proceedings

By Lawrence Weinstein on March 21, 2019 Posted in NAD/NARB/CARU/ERSP, Regulatory

No advertiser likes challenges to its advertising, whether by private litigants, state or federal governmental agencies, or in voluntary self-regulatory NAD proceedings. But for companies whose advertising is challenged at NAD, there are good reasons to participate and to abide, like it or not, by NAD’s recommendations or those of NARB, the appellate arm of … Continue Reading

Nestlé’s Non-Disclosure of Child and Slave Labor Issues on Packaging Not Deceptive or Unfair, Massachusetts Federal Court Holds

By Lawrence Weinstein, Carl Mazurek and Eric Wertheim on February 28, 2019 Posted in Deceptive Trade Practices

Though child and slave labor is “widespread, reprehensible, and tragic,” a federal court in the District of Massachusetts found it was not deceptive for Nestlé to omit from product labels that those practices (allegedly) exist in its supply chain. In granting defendant Nestlé’s motion to dismiss, the court, after assuming that plaintiff’s allegations are true, … Continue Reading

FTC and DeVry University Settle False Advertising Claims for $100M

By Alexander Kaplan and Russell Kostelak on January 31, 2017 Posted in Deceptive Trade Practices, Regulatory, Uncategorized

In December 2016, DeVry University agreed to pay $100 million to settle a lawsuit with the Federal Trade Commission (FTC) over allegations stemming from DeVry’s advertising about the employment rates and salaries of its graduates. According to the FTC press release announcing the settlement in FTC v. DeVry Educ. Group in the district court for … Continue Reading

The FTC Trims the Fat Off Even More Companies Selling Weight Loss Products

By Alexander Kaplan, Jennifer Yang and Russell Kostelak on May 2, 2016 Posted in Deceptive Trade Practices

Hungry to prevent more companies from selling allegedly bogus weight loss products, the FTC has settled yet another false advertising suit against various sellers of diet pills, in a case similar to February’s Sale Slash settlement blogged about here. The FTC’s latest diet pill settlement enjoins distributors of the dietary supplement known as Pure Green Coffee … Continue Reading

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