In September 2022, the Federal Trade Commission announced that it had taken action against credit services company Credit Karma for allegedly deploying dark patterns to misrepresent that consumers were “pre-approved” for credit card offers. The FTC alleges that the company used claims that consumers were “pre-approved” and had “90% odds” to entice them to apply for offers … [Read more...]
FCC Says Ringless Voicemails Require Prior Consent
“Ringless voicemails” are messages left in a consumer’s mailbox without ringing their cell phone. The Telephone Consumer Protection Act protects consumers from unwanted robocalls. The TCPA, in pertinent part, prohibits making any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number without the … [Read more...]
Copyright Attorney Discusses Advertiser Vicarious Liability for Social Media Influencer Infringement
UMG Recordings, Inc. v. Vital Pharmaceuticals, Inc., 2022 WL 2670339 (S.D. Fla. July 11, 2022) involves a copyright infringement action brought by a group of music publishers and record companies against an energy drink and sports nutrition supplement company doing business as Bang Energy and its CEO. The plaintiffs’ claims included direct and indirect infringement … [Read more...]
FTC Reminds Lead Generators Not to Misuse Sensitive Consumer Data
Lead generators and digital marketers, beware. The issue of legitimate data use, reasonable expectations, disclosures, affirmative consent, data privacy compliance and lead generation best practices are still front-and-center at the Federal Trade Commission. Among the most sensitive categories of data collected by connected devices are a person’s precise location and … [Read more...]
Use of Certain Technologies to Track Web Session Data May Violate Law
Attention Lead Generators. The Ninth Circuit Court of Appeals recently held that use of certain technologies on a websites in order to track and record web session data before obtaining affirmative consent may be a violation of California’s wiretap statute. In the case of Javier v. Assurance IQ, LLC and ActiveProspect Inc. (*not precedent except as provided by Ninth … [Read more...]
CFPB Issues Warning About Contractual Gag Clauses and Consumer Reviews
On March 22, 2022 the CFPB issued a policy statement on contractual “gag” clauses and fake review fraud. While the bulleting indicates that financial companies will face consequences for illegally manipulating or suppressing consumer reviews, the message is one with broader implications for all digital marketers. The policy guidance regarding potentially illegal practices … [Read more...]
FTC Rules With Civil Monetary Penalties for Deceptive Earnings Claims and Targeted Marketing May Be Forthcoming
On February 10, 2022 the Federal Trade Commission announced that it intends to vote whether to issue an Advance Notice of Proposed Rulemaking on “deceptive earnings claims for business ventures, gig or other work opportunities, or educational, coaching or training offerings.” The vote is set to take place on February 17, 2022 at an open meeting. A webcast will be available on … [Read more...]
FTC Rules With Civil Monetary Penalties for Deceptive Earnings Claims and Targeted Marketing May Be Forthcoming
Accountable Tech has recently filed a petition for an FTC rulemaking that would ban “surveillance advertising” as an “unfair method of competition.” The group cites the ad practices of surveillance ad giants like Facebook, Google and Amazon. The petition notes that President Biden’s Executive Order encourages the FTC to use its rulemaking authority to address “unfair data … [Read more...]
The FTC, Lead Generation and Telemarketing Sales Rule DNC Investigations
The Federal Trade Commission continues to investigate and enforce violations of the Telemarketing Sales within the lead generation industry, including lead generators that “assist and facilitate” sellers or telemarketers that violate the TSR. Recent FTC Civil Investigative Demands to lead generators illustrate that the FTC may now be resurrecting the issue of the application … [Read more...]
House Passes Bill Aimed at Restoring FTC Enforcement Authority
On July 20, the U.S. House of Representatives passed the Consumer Protection and Recovery Act (H.R. 2668). Authored by Representative Tony Cárdenas (D-CA), the Act is intended to restore the Federal Trade Commission’s section 13(b) consumer protection enforcement powers and would authorize the FTC to seek permanent injunctions and other equitable relief, including restitution … [Read more...]
Important Email Marketing Legal Decision by California Court of Appeals
On June 21, 2021 in the matter of Greenberg et al. v. Digital Media Solutions LLC, the Court of Appeal of the State of California held that: (i) a recipient of a commercial email advertisement sent by a third party is not precluded as a matter of law from stating a cause of action under section 17529.5 against the advertiser for the third party’s failure to provide sufficient … [Read more...]
FTC and U.S. Chamber of Commerce Fight About Section 13(b) of the FTC Act
Following a hearing in the Senate Committee on Commerce, Science, and Transportation last month, Federal Trade Commission Acting Chairwoman Rebecca Kelly Slaughter wrote to the Committee regarding the FTC’s position that the ability of the agency to return money unlawfully taken from consumers should be restored. The aforementioned Congressional Committee is currently working … [Read more...]
FTC Warns Marketers and Social Media Platforms About COVID-19 Claims
In April 2021, the Federal Trade Commission announced that it forwarded a tenth set of warning letters to marketers, directing them to stop making unsubstantiated express and implied claims that their products and therapies can prevent or treat COVID-19. According to the FTC, all of the marketers that the FTC contacted complied with the agency’s demand to stop making such … [Read more...]
The Highly Anticipated Supreme Court Decision in AMG Capital Management, LLC v. Federal Trade Commission is Drawing Near
And Those in Favor of a Legislative Fix to the FTC’s Embattled Enforcement Authority Under 13(b) Are Acting With a Greater Sense of Purpose Breaking news this morning: U.S. Supreme Court Halts FTC’s Ability to Obtain Ill-Gotten Gains On April 21, 2020 in the matter of AMG Capital Management, the U.S. Supreme Court effectively made it more difficult for the Federal Trade … [Read more...]
Advertiser’s Responsibilities for What Others Say in Social Media
As outlined by the FTC Endorsement Guides, advertisers are required to have “reasonable programs” in place to train and monitor members of their network. The scope of the program may depend upon the risk that deceptive practices by network participants could cause consumer harm. Some Elements Every Program Should Include Given an advertiser’s responsibility for … [Read more...]