Ad Law Insights - Legal and Regulatory Updates
Latest FTC and state attorneys general compliance, investigation and enforcement developments of concern to advertisers and marketers
On December 18, 2024, the Federal Trade Commission announced that it approved a final consent order against a seller of an AI “testimonial and review” service – settling allegations that the service it sold provided subscribers with the means of generating false and deceptive online reviews.
The FTC’s September 2024 complaint alleges that the service generated detailed reviews that contained specific, often material details that had no relation to the user’s input, so would purportedly be false for the users who copied them and published them online. Accordingly, the complaint charges that the company violated the FTC Act by providing subscribers with the means to generate false and deceptive written content for reviews. It also alleges the company engaged in an unfair business practice by offering a service that is likely to pollute the marketplace with a glut of fake reviews.
The final order settling the Commission’s complaint prohibits the comapny from engaging in such conduct and bars the company from advertising, promoting, marketing or selling any service dedicated to – or promoted as – generating consumer reviews or testimonials.
The Commission voted 3-2 to approve the final consent order and letters to eight public commenters. Commissioners Melissa Holyoak and Andrew Ferguson previously issued separate dissenting statements.
In his dissent, Commissioner Ferguson states, in pertinent part, “I dissent from the filing of the complaint and consent agreement because I do not have reason to believe that [the company] violated Section 5, and because I do not believe filing is in the public interest.
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,
On October 16, 2024, the Federal Trade Commission announced the final FTC “Click-to-Cancel” Rule pertaining to recurring subscriptions and memberships.
The Federal Trade Commission is not the only regulatory agency that actively enacts, updates and polices legislation governing autorenewals, subscriptions and continuous service offers. For example, state attorneys general are, in some instances, more aggressive than the FTC. Some notable states with automatic renewal legislation include New York, Vermont, Colorado, Illinois, Tennessee, Virginia, Minnesota, South Carolina, Utah and California.
California’s Current Automatic Renewal Law
California’s auto renewal legislation is perhaps the most aggressive of all. In short, California’s ARL applies to contracts with consumers, defined as “any individual who seeks, acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes.” It includes notice and cancellation requirements for free trials and automatically renewing subscription plans. It also emphasizes the provision of a simple, easy-to-use cancellation mechanism. In California, those making an automatic renewal or continuous service offer are required to present material terms in a “clear and conspicuous manner.” Businesses are also required to seek and obtain a consumer’s affirmative consent to such terms in close proximity to making these material disclosures and prior to the point of billing the consumer.
Disclosures must include, for example and without limitation, that the subscription or purchase agreement will continue until the consumer cancels, a description of the cancellation policy, that recurring charges will be charged continuously until cancellation,
The Federal Trade Commission and the Justice Department’s Antitrust Division recently participated in the G7 Competition Authorities and Policymakers Summit to discuss ways to ensure competition in artificial intelligence (AI)-related technologies, products, and applications. At the conclusion of the summit, FTC Chair Lina M. Khan and other representatives of the G7 competition authorities and government policymakers issued a Communiqué highlighting potential competition concerns in AI-related markets and identifying guiding principles to ensure fair competition across AI markets.
The Communiqué underscores the important role that competition authorities and policymakers have in addressing competitive threats. As the Communiqué outlines, concentrated market power in AI-related markets and possible collusion or improper information sharing using AI technologies require careful vigilance and vigorous and timely competition enforcement. The G7 competition authorities and policymakers reaffirmed that they are working to ensure there is open and fair competition in digital markets and AI and seeking to ensure that the benefits of AI are fully realized and widely available across society.
The summit was convened by the G7 Industry, Technology and Digital Ministerial Declaration and hosted in Rome by the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) in conjunction with Italy’s rotating G7 presidency.
The Federal Trade Commission works with counterpart agencies to promote sound antitrust, consumer protection, and data privacy enforcement and policy.
Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP.
Informational purposes only. Not legal advice.
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,
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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.