Lead Generation
As previously covered here and here, the Federal Trade Commission has recently warned businesses to comply with the FTC Consumer Review Rule.
On December 22, 2025, the FTC announced that it sent warning letters to alert a number of companies of potential violations of the Rule on the Use of Consumer Reviews and Testimonials (the “Consumer Review Rule”). The letters warn of potential violations of the agency’s Rule, which prohibits certain deceptive or unfair conduct related to the use of product reviews in advertising and marketing.
These letters confirm, for example, that companies violating the Consumer Reviews Rule may be subject to FTC enforcement actions, civil penalties of up to $53,088 per violation, consumer redress and other remedial measures. Consult with a FTC CID lawyer for how the FTC Consumer Review Rule may impact you or your business.
The Consumer Reviews Rule prohibits reviews and testimonials that misrepresent whether a reviewer’s experience was positive or negative, or whether the reviewer used the product or service at all. It also prohibits businesses from conditioning compensation or other incentives on reviewers expressing a particular sentiment, either positive or negative, or from failing to disclose when reviews are written by company insiders or their immediate relatives. The Rule contains additional provisions relating to company-controlled review websites, suppressing certain reviews, and misusing indicators of social media influence like the number of followers or views.
To focus of this article by a leading FTC Consumer Review Rule lawyer is on the FTC Consumer Review Rule prohibition on “insider consumer reviews and consumer testimonials” (16 CFR 465.5).
On January 6, 2025, the Federal Trade Commission issued its biennial report to Congress on the National Do Not Call (DNC) Registry that illustrates consumers placed more than 258 million telephone numbers on the Federal Do Not Call Registry as of the end of fiscal year 2025, an increase of more than 4.8 million from the previous fiscal year.
According to the Report, the FTC received more than 2.6 million Do Not Call complaints in fiscal year 2025 — an increase from the previous fiscal year — with consumers mostly reporting these violations came via robocalls, as opposed to live telemarketing.
According to FTC attorneys, debt reduction schemes, imposters (calls pretending to be government, business, or family and friends), and medical and prescription inquiries led the list of commonly reported unwanted telemarketing calls in FY 2025, followed by calls related to energy, solar, and utilities, as well as home improvement and cleaning services.
The FTC continues to track how technology affects the DNC Registry and the consumers and telemarketers who access it. For many years, telemarketers have used automated dialing technology to make pre-recorded calls, commonly known as robocalls. Such calls can be made in large numbers with little expense, leading to a significant increase in telemarketing robocalls, including illegal robocalls. According to the Report, the number of consumer complaints about illegal telemarketing robocalls steadily decreased from FY 2017 through FY 2024.
While the number of complaints about robocalls ticked up in FY 2025,
AI-generated advertisements are a double-edged sword. Digital marketers should be properly advised on risks related to such use in conjunction with advertising campaigns.
For example, the growing use of artificial intelligence in advertising has recently resulted in New York State enacting a new law that carries clear compliance obligations and monetary penalties for advertisers that fail to comply.
On December 11, 2025, New York Governor Kathy Hochul signed S.8420-A/A.8887-B, a first-of-its-kind legislation. The new law requires transparency in digital and social advertising. In short, the new law requires a “conspicuous disclosure” when an advertisement includes a “synthetic performer” in a commercial advertisement.
What is a “Synthetic Performer”?
As set forth by the statute, a “synthetic performer” means a digitally created asset created, reproduced, or modified by computer, using generative artificial intelligence or a software algorithm, that is intended to create the impression that the asset is engaging in an audiovisual and/or visual performance of a human performer who is not recognizable as any identifiable natural performer.
What are the Disclosure Requirements Under the New Law?
Any person, firm, corporation, or association (or their agents or employees) engaged in the business of dealing in any property or service who for any commercial purpose produces or creates an advertisement before the public in New York respecting any such property or service, in any medium or media in which such advertisement appears, shall “conspicuously” disclose in such advertisement that a synthetic performer is in such advertisement,
The Federal Trade Commission and National Advertising Division of BBB National Programs set forth their enforcement priorities during the 2025 ANA Masters of Advertising Law Conference,
Not surprisingly, the FTC set forth a bread-and-butter enforcement agency. It includes, without limitation, protecting children (Children’s Online Protection Act (16 C.F.R. § 312); enforcing Made in USA (U.S. Origin Claims) (Made in USA Labeling Rule – 16 C.F.R. § 323); enforcing subscriptions, negative options and automatic trial programs (Restore Online Shoppers’ Confidence Act), Dark Patterns and Click-to-Cancel); Enforcing the FTC Rule on Unfair or Deceptive Fees”); enforcing target advertising and surveillance marketing techniques; enforcing influencers, consumer reviews and endorsements (The Consumer Reviews and Testimonials Rule: Questions and Answers – 16 CFR Part 465); and enforcing the use of AI (for example and without limitation, exaggerating the capabilities of AI features).
Consult with an experienced ecommerce attorney to discuss the implementation of preventative compliance measures or if you are the subject of a regulatory investigation of enforcement action.
Other areas which are reasonably certain to receive increase regulatory investigation and enforcement attention include but are not limited to, data privacy, Telephone Sale Rule, Telephone Consumer Protection Act, state unfair and deceptive business practices,
Additional key highlights and takeaways for discussion with a qualified ecommerce attorney include the use of health claims, green claims, and social media IP rights and takedown procedures,
Contact the author for more information.
Richard B.
In a win for telemarketers, a Florida federal court recently held that “a text message is not a ‘telephone call.’”
The TCPA’s Do Not Call provisions prohibit telephone solicitations to residential subscribers that place their numbers on the federal Do Not Call registry. In Davis v. CVS Pharm., Inc., No. 24-0477, 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025), the plaintiff alleged in a class action that CVS sent him unsolicited text messages in violation of Telephone Consumer Protection Act provisions prohibiting calls to individuals registered on the Do-Not-Call Registry. See 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(c)(2).
In a ruling on behalf of CVS, the court held that that Congress used the term “telephone calls” in Section 227(c)(5), and that the text of the statute evidence that a call does not include text messages. The court opined that it is required to interpret the TCPA “in accord with the ordinary public meaning of its terms at the time of its enactment” and that, “if the text is clear, the analysis begins and ends there.”
Notably, the court rejected CVS’ position that the court should defer to a 2003 FCC order that provides for texts being considered calls for TCPA purposes. The court stated that it is not required to utilize “a statutory interpretation that conflicts with the ordinary public meaning of clear statutory text.” The holding is consistent with a recent decision by an Illinois federal court.
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 is watching the healthcare lead generation industry closely.
On December 10, 2024, the Federal Trade Commission announced that it has sent warning letters to 21 companies that market or generate leads for healthcare plans. The letters were sent as open enrollment season for healthcare plans is ongoing. They provide guidance and provide about deceptive or unfair claims that likely violate laws enforced by the FTC.
The letters were sent to companies that provide marketing or advertising, including lead generation, related to Affordable Care Act Marketplace health insurance and healthcare-related products, such as limited benefit plans and medical discount programs.
The purpose of FTC warning letters is to warn companies that their conduct is likely unlawful and that they can face serious legal consequences, such as a federal investigation of lawsuit, if they do not immediately stop. Overwhelmingly, companies that receive FTC warning letters take steps quickly to correct and come into compliance with applicable legal regulations.
“It is critical for consumers’ health and financial well-being that marketers of health plans be honest about the plans they and their partners are offering,” said FTC lawyer Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “The FTC has been watching this important sector closely, especially during open enrollment season, and these warning letters put companies on notice that unlawfully marketing or advertising health plans to consumers can result in serious legal consequences.”
Based on information collected by FTC staff and the agency’s enforcement experience in this area,
As previously blogged about here, following notices of proposed rulemaking in 2022 and 2023, on August 22, 2024 the Federal Trade Commission finalized a rule that will impose monetary civil penalties false and misleading consumer reviews and testimonials. Those covered by the Final Rule, including, but not limited to, advertisers, marketers, manufacturers, brands and various intermediaries, and businesses that promote and assist such entities, should consult with an experienced FTC compliance lawyer and begin to prepare for its enforcement, immediately.
What Does the FTC Final Rule Banning Fake Consumer Reviews and Testimonials Cover?
The FTC Final Rule Banning Fake Consumer Reviews and Testimonials formalizes the prohibition of various practices relating to the use of consumer reviews and testimonials and sets forth which practices may be considered unfair or deceptive pursuant to the FTC Act.
In short, the Final Rule is intended to foster fair competition and protect consumers’ purchasing decisions. In general, the Final Rule covers: (i) the purchase, sale or procuring of fake reviews or testimonials (for example and without limitation, a reviewer that does not exist, a reviewer that did not actually use or possess experience with the product or service, or a review that misrepresents actual experience); (ii) providing compensation or other incentives in exchange for reviews that express a particular sentiment; (iii) facilitating “insider” consumer reviews and testimonials that do not contain a clear and conspicuous disclosure of the relationship; (iv) utilizing websites that appear to be independent review websites when,
On July 23, 2024, the Federal Trade Commission announced the issuance of orders to eight companies offering surveillance pricing products and services that incorporate data about consumers’ characteristics and behavior. The orders were sent to: Mastercard, Revionics, Bloomreach, JPMorgan Chase, Task Software, PROS, Accenture, and McKinsey & Co.
The orders seek information about the potential impact these practices have on privacy, competition and consumer protection.
The orders are aimed at helping the FTC better understand the opaque market for products by third-party intermediaries that claim to use advanced algorithms, artificial intelligence and other technologies, along with personal information about consumers—such as their location, demographics, credit history, and browsing or shopping history—to categorize individuals and set a targeted price for a product or service.
The study is aimed at helping the FTC better understand how surveillance pricing is affecting consumers, especially when the pricing is based on surveillance of an individual’s personal characteristics and behavior.
“Firms that harvest Americans’ personal data can put people’s privacy at risk. Now firms could be exploiting this vast trove of personal information to charge people higher prices,” said FTC lawyer and Chair Lina M. Khan. “ Americans deserve to know whether businesses are using detailed consumer data to deploy surveillance pricing, and the FTC’s inquiry will shed light on this shadowy ecosystem of pricing middlemen.”
The FTC is using its 6(b) authority, which authorizes the Commission to conduct wide-ranging studies that do not have a specific law enforcement purpose,
As previously blogged about here, the Federal Communications Commission recently published the final, single-seller, one-to-one lead generator consent rule (the “Rule”). The Rule amends the definition of “prior express written consent” for purposes of the Telephone Consumer Protection Act and will dramatically impact the lead generation industry.
How Does the New One-to-One, Single Seller Rule Impact Lead Generation?
When utilizing regulated technologies such as automatic telephone dialing systems (“ATDS”), artificial or prerecorded voice telephone calls, artificial intelligence voice telephone calls, outbound interactive voice response, and voicemail technology using artificial or pre-recorded voice messages, consumers will be required to select each “seller” – the ultimate provider – of a product or service from whom they want to receive telephone calls from.
Note that manual dialing may not provide cover, including insofar as telephone numbers on a do-not-call registry and various state legal regulations are concerned.
Further note that single “seller” consent does not encompass lead generators and other intermediaries, with potentially limited exception. Furthermore, it also appears that sharing consent across corporate affiliates will also be considered a Rule violation.
The cost of violating any of the Rule’s provisions are potentially devastating. Plaintiffs’ attorneys will be ready to pounce. Do not attempt to secure compliance on your own. Contact an FTC lawyer to discuss legal regulatory considerations for keeping you and your business from becoming low hanging fruit.
The effective date for the single seller provisions of the Rule is January 2025.
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About This Blog and Hinch Newman’s Advertising + Marketing Practice
Hinch Newman LLP’s advertising and marketing practice includes two decades successfully resolving some of the highest-profile Federal Trade Commission (FTC) and state attorneys general digital advertising and telemarketing investigations and enforcement actions. As FTC attorneys, the firm possesses superior compliance knowledge and deep legal advocacy experience in the areas of advertising, marketing, lead generation, promotions, e-commerce, privacy and intellectual property law. It has also been selected to author the Consumer Protection Section of the prestigious American Lawyer Media International Federal Trade Commission: Law, Practice and Procedure Treatise, a comprehensive resource for developments of concern to advertisers, marketers and legal professionals that practice before the Commission. Through these advertising and marketing law updates, Hinch Newman LLP 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.