The 10th Public Commission Meeting – Talking About Telemarketing, AMG and, Yes, Dream Incubation

We made it to the 10th public commission meeting. Now, one person who didn’t make it to the meeting today (or at least did not appear on the main screen) was Alvaro Bedoya. We had heard that his confirmation vote to become the fifth commissioner was going to happen this week, but apparently a few high-profile COVID-19 cases caused a delay in his vote. Because of a partisan divide on his nomination, his vote was likely going to require a tie-breaking vote from Vice President Harris.

The surprise portion of the meeting was brought to you by the Telemarketing Sales Rule (TSR), which is a broad rule that regulates what telemarketers can and cannot do with respect to contacting consumers and also sets payment restrictions for the sale of goods and services made through telemarketing calls. As important background, the TSR generally just addresses calls that companies make to consumers, not business-to-business (B2B) calls (though there are a few substantive areas where B2B calls are also covered). And for those unfamiliar with AMG, it is a Supreme Court decision from April 2021 that dramatically limited the ability of the FTC to get equitable monetary relief in federal court. We have discussed it a lot here, but lately, new FTC leadership hasn’t said all that much about it.

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The FTC’s Website Redesign – Broken Links, Missing Content and Broken Dreams

Whether you are an FTC fan or foe, we can all agree that one of the agency’s crown jewels is its consumer and business education program. For decades, this program has provided information that has helped consumers protect themselves and has provided businesses with important information and guidance to inform their decision making. And probably the most precious of these jewels is the FTC Business Blog.

For well over a decade, this blog has been the go-to place for those of us who advise companies about recent FTC developments and for businesses that want to stay on top of what’s going on at the agency. The analysis is always spot-on, and material is presented in a way that is unique, entertaining and sometimes just laugh-out-loud funny. This is the blog that explained the importance of compliance with the Fair Credit Reporting Act (FCRA) by comparing it to everyone’s favorite Village People song, YMCA.

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What’s in a Label – Three Takeaways from the FTC’s First Enforcement Action Brought Under the New Made in the USA Rule

Last year, the Federal Trade Commission (FTC) finalized a new rule (Rule) that would allow the agency to seek civil penalties in matters where a company made a false and unqualified Made in the USA (MUSA) claim on product labels. In the rulemaking process, however, the FTC developed a very broad definition of “labels,” which led at least one commissioner to dissent because that definition “exceeds our statutory grant of rulemaking authority.” (The definition is broad and states that labeling includes “any materials . . . that are disseminated in print or by electronic means, and that solicit the purchase of such product or service by mail, telephone, electronic mail, or some other method.”)

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Bamboozling Part II: The FTC Brings Back Retro Penalty Offense Letters like Bell Bottoms and Big Hair

What do bamboo fabric and green claims have to do with toys, weight loss, car rentals and fur coats? Sounds like the start of a Dad joke, but unfortunately this is no laughing matter. It is the FTC reaching back to bygone eras for help in getting money in its enforcement cases. Much virtual ink was spilled in fall 2021 when the FTC sent Notice of Penalty Offense letters to 1,800 companies warning them of the possibility of civil penalties if they engaged in certain practices that the agency had – many, many years ago – deemed deceptive or unfair. If you need a quick refresher, take a look here and here and here.

For a second act, which to be clear no one was clamoring for, the FTC is now taking us back to the 1970s. Tucked in the back of a recent press release announcing the agency’s latest bamboo cases was a paragraph that stated, “In conjunction with this announcement, the FTC is reviving additional Notices of Penalty Offenses that were issued in the 1970s or 1980s but remain valid and relevant today. These notices cover, for example, textiles, energy savings, fur products, home improvement products, auto rentals, bait and switch, toys, and weight reduction. Businesses in these industries should familiarize themselves with the Commission’s determinations in these areas.”

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Bamboozling – Part I: Do Green Claims Require a Life Cycle Analysis?

Textile industry – Sock woven machinery

The title of this series is an homage to the great Lesley Fair, who launched and authors many of the best of the FTC’s business blogs and who coined this term in her blog reviewing 2013 cases on the same topic. But we are here today to talk about the most recent settlements involving textiles labeled “made from bamboo.” And in homage to bamboo as the world’s fastest-growing plant, we will “stalk up” on blogs for the week based on this case, as there is a lot to chop down here. But we do not want to bury today’s lessons in excessive leaves; the first takeaway is that apparel and home goods retailers everywhere should fertilize their compliance programs and root out any made-from-bamboo textile claims that may be germinating on websites. The broader issue is whether all brands should reassess their general green claims to make sure they are appropriately qualified.

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The Rubber Hits the Road to the Tune of $10 Million – FTC and Illinois Sue an Auto Dealership

Not many people enjoy sitting in a car dealership spending hours evaluating or making a costly purchase, but it’s far more frustrating when the dealership allegedly engages in practices that face the ire of law enforcement.

A recent case announced by the Federal Trade Commission (FTC) is important for many reasons. First, it’s a helpful example of some of the new strategic approaches taken by the FTC after the Supreme Court’s decision in AMG. Second, it’s a helpful example of some of the priorities of the current FTC. And third, the allegations are quite serious and raise important equity issues. It is also a record-setter; at $10 million, it is the largest settlement for any FTC auto lending case.

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The Future’s So Bright, I Gotta Wear BluBlockers – A Walk Through Advertising History

The other day, we noticed an article announcing that legendary direct marketer Joe Sugarman had passed away. He had quite a career in the industry but was probably best known for the omnipresent BluBlocker sunglasses that were on heavy rotation in the 1980s and early ’90s. For younger readers, BluBlockers were ultra-cool sunglasses that promised to filter out ultraviolet and blue lights and “produce one of the most pleasing visual effects ever created for any pair of sunglasses.” And the infomercials and other advertising were quite entertaining.

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What Is a PFAS, and Why Should I Care? Part II – The Threat to the Restaurant and Food Packaging Industries, and Potential Personal Injury Classes

In our initial blog post, we introduced readers to per- and polyfluoroalkyl substances (PFAS), known as “forever chemicals,” and predicted the rise of PFAS consumer class actions and increased regulatory activity barring the use of PFAS in consumer products in state and federal legislatures. As a quick refresher, PFAS biodegrade very slowly, are extremely persistent in the environment and can bioaccumulate in the human body. These chemicals remain in the spotlight under continued environmental scrutiny and new regulation by the Biden administration. Recent toxicity assessments by the Environmental Protection Agency have linked certain PFAS chemicals to cancer and other serious negative health effects at low concentrations. While PFAS litigation has been primarily focused on PFAS chemical manufacturers, we hypothesized in our last post that consumer plaintiffs’ attorneys might begin to target companies that use PFAS in their products and/or in their packaging. At the time we published, only a few putative consumer class actions had been filed in federal courts in the United States. Already, less than a month from our original article, PFAS cases are on the rise, with at least three new consumer class actions in three different industries: an anti-fog product manufacturer, a multinational cosmetics company and a well-known skin/lip care company. Due to several recently released studies, food packaging companies and restaurants are quickly becoming prime targets for PFAS litigation.

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Taking a Lesson from the FTC – Reviews and Gag Clauses Emerge as CFPB Issues

We have talked a lot this year about the Federal Trade Commission’s (FTC) focus on reviews, and so far we have seen cases involving review suppression and incentivized reviews, as well as new guidance about how platforms and marketers should handle reviews. And the Consumer Financial Protection Bureau (CFPB) has now staked its claim to this issue, asserting that there is yet another review sheriff in town – this time, one focused on financial products and services.

The CFPB recently released a policy guidance statement on review fraud and gag clauses. For those new to this area, gag clauses are provisions in consumer contracts that prohibit consumers from providing truthful online reviews. These provisions were largely deemed unlawful by Congress in the 2016 Consumer Review Fairness Act (CRFA). The FTC, however, is the agency that Congress gave enforcement authority to over the CRFA.

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Daniel Kaufman Discusses COPPA and Safe Harbors

On March 23, Daniel Kaufman joined an episode of The Accountability Studio, a BBB National Programs podcast. During the episode titled “COPPA Questions: Are Safe Harbors Effective?” Daniel discussed his perspective on compliance with the Children’s Online Privacy Protection Act, the value of the Safe Harbor provision, and ways the provision can be modernized and improved.

Listen to the podcast here.