Ad Law Insights - Legal and Regulatory Updates
Latest FTC and state attorneys general compliance, investigation and enforcement developments of concern to advertisers and marketers
As contemplated by FTC defense lawyer in December 2024, the Federal Trade Commission’s operations during the first two months under the second Trump Administration have been chaotic. Unsurprisingly, the policy focus appears to be de-regulation and an enforcement focus on bread-and-butter fraud and deception (for example and without limitation, bogus business opportunity offers, unsubstantiated earnings claims and unlaw debt collection), privacy, telemarketing, big technology moderation and the protection of competition in labor markets.
Last week, President Trump fired the remaining two Democratic commissioners. Both have stated that they believe their termination is unlawful and may challenge the dismissals judicially. Two Republican commissioners remain to make regulatory, investigation and enforcement-related decisions.
The Federal Trade Commission has traditionally been considered an independent agency. However, President Trump recent issued an Executive Order seeking to vest control of various federal agencies and financial regulator within his control, including the FTC. In doing so, the Trump administration seemingly seeks to exert some degree of control over the strategic priorities of the agencies and regulators.
Historically, an FTC commissioner may only be removed by the President for “inefficiency, neglect of duty or malfeasance in office.” In fact, in Humphrey’s Executor v. United States (1935), the Supreme Court ruled that FTC commissioners cannot be removed over policy differences.
Importantly, however, in Selia Law v. CFPB (2019), the Supreme Court held that restricting removal of the Consumer Financial Protection Bureau director to “for cause” only is unconstitutional. Justices Thomas and Gorsuch concurred and criticized the Humphrey’s Executor decision.
On February 18, 2025, the Federal Trade Commission announced that Chairman Andrew N. Ferguson appointed David Shaw as Principal Deputy Director and Kelse Moen as Deputy Director of the agency’s Bureau of Competition, and Douglas C. Geho as Deputy Director of the Bureau of Consumer Protection.
Shaw is an experienced antitrust lawyer with expertise in high-stakes litigation and contentious merger review. During the first Trump Administration, Shaw served in the Department of Justice’s Antitrust Division in a variety of roles, from the front lines as a trial attorney to the front office as acting chief of staff. As a trial attorney, Shaw served on multiple trial teams, including the first litigated vertical merger challenge in forty years.
While serving in DOJ’s front office, he held a leadership role in the Big Tech investigations and successfully coordinated a bipartisan coalition of state attorneys general joining the DOJ complaint in the Google search monopolization case.
In addition to his government service, Shaw was a partner in the antitrust practice of a large international law firm.
Moen is an experienced antitrust attorney, with a career in both government service and private practice. Most recently, he served as senior counsel to the U.S. Senate Judiciary Committee for Senator Lindsey Graham, where he focused on antitrust, technology, and intellectual property issues, a position that he held until his appointment to the FTC.
Before joining the Judiciary Committee staff, Moen spent nearly a decade practicing antitrust law at major international law firms,
On the eve prior to its effective date, the FCC’s One-to-One Consent Rule which sought to redefine the meaning of “prior express written consent” under the Telephone Consumer Protection Act, was postponed for one year by order of the FCC’s Consumer and Government Affairs Bureau. Just minutes thereafter, the rule was struck down by the U.S. Court of Appeals for the Eleventh Circuit.
Background
The Telephone Consumer Protection Act (TCPA) , in part, requires callers to possess “prior express consent” when making non-emergency telephone calls to cell phones using an automatic telephone dialing system, or artificial or prerecorded voice; and telephone calls to residential telephone lines using an artificial or prerecorded voice (with limited exceptions).
In 2012, the Federal Communications Commission established that the foregoing calls (including SMS text messages) for marketing purposes must have “prior express written consent,” defined as “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.”
The Federal Communication Commission Government Affairs Bureau Postpones Effective Date of the TCPA One-to-One Consent Rule
On January 24, 2025, the FCC announced that it has postponed the effective date of the one-to-one consent rule. “By this Order,
The Federal Trade Commission’s initial findings from its surveillance pricing market study revealed that details like a person’s precise location or browser history can be frequently used to target individual consumers with different prices for the same goods and services.
The staff perspective is based on an examination of documents obtained by FTC staff’s 6(b) orders sent to several companies in July aiming to better understand the “shadowy market that third-party intermediaries use to set individualized prices for products and services based on consumers’ characteristics and behaviors, like location, demographics, browsing patterns and shopping history.”
Staff found that consumer behaviors ranging from mouse movements on a webpage to the type of products that consumers leave unpurchased in an online shopping cart can be tracked and used by retailers to tailor consumer pricing.
“Initial staff findings show that retailers frequently use people’s personal information to set targeted, tailored prices for goods and services—from a person’s location and demographics, down to their mouse movements on a webpage,” said FTC Chair Lina M. Khan. “The FTC should continue to investigate surveillance pricing practices because Americans deserve to know how their private data is being used to set the prices they pay and whether firms are charging different people different prices for the same good or service.”
The FTC’s study of the 6(b) documents is still ongoing. The staff perspective is based on an initial analysis of documents provided by Mastercard,
On Friday, December 27, 2024, the Justice Department issued a final rule to address “urgent national security risks posed by access to U.S. sensitive personal and government-related data from countries of concern and covered persons.” The final rule was posted publicly and addresses “continued efforts of countries of concern to access, exploit, and weaponize Americans’ bulk sensitive personal and U.S. government-related data.”
This rule reflects the Department’s careful consideration of the comments received in response to the March 5, 2024 Advance Notice of Proposed Rulemaking (“ANPRM”) and the October 29, 2024 Notice of Proposed Rulemaking (“NPRM”) as well as feedback from hundreds of representatives from companies and organizations and extensive consultation with dozens of other U.S. Government agencies and offices, along with engagement foreign partners.
As previewed in the ANPRM and NPRM, the final rule establishes a national-security program within the Justice Department’s National Security Division that restricts and in some instances prohibits U.S. persons from engaging in certain categories of data transactions with six “countries of concern” (including covered persons and entities subject to coercion by those countries) because such transactions pose unacceptable national-security risks of giving those countries, entities, or persons access to U.S. bulk sensitive personal data or government-related data.
The rule will become effective 90 days after publication. Certain affirmative compliance obligations will be phased in with a later effective date of 270 days after publication.
The Department also intends to continue engaging with industry and other stakeholders to determine whether any general licenses are appropriate as this program goes into effect.
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About This Blog and Hinch Newman’s Advertising + Marketing Practice
Hinch Newman LLP’s advertising and marketing practice includes successfully resolving some of the highest-profile Federal Trade Commission (FTC) and state attorneys general digital advertising and telemarketing investigations and enforcement actions. The firm possesses superior knowledge and deep legal experience in the areas of advertising, marketing, lead generation, promotions, e-commerce, privacy and intellectual property law. Through these advertising and marketing law updates, Hinch Newman provides commentary, news and analysis on issues and trends concerning developments of interest to digital marketers, including FTC and state attorneys general advertising compliance, civil investigative demands (CIDs), and administrative/judicial process. This blog is sponsored by Hinch Newman LLP.