Last week the Federal Trade Commission (FTC) announced it had issued a complaint and proposed consent order against Instant Brands LLC for allegedly marketing products as “Made in the USA,” when they were actually made in China. Instant Brands, which manufactures Pyrex-brand products that include a range of mostly glass baking and cooking accessories, has already agreed to the settlement, which requires a payment of a monetary judgment of $129,416.

The company also agreed to three marketing restrictions:

  1. The FTC restricts the company from making unqualified U.S.-origin claims unless the product’s final assembly or processing, and all significant processing, takes place in the United States, and that all or virtually all ingredients or components of the product are made and sourced in the U.S.
  2. The agency requires that qualified “Made in USA” claims be accompanied by a disclosure regarding the presence of foreign parts, ingredients or components, and processing
  3. For any U.S.-assembly claims, it must be the case that the product is last substantially transformed in the U.S., principal assembly takes place in the U.S., and U.S. assembly operations are substantial
Continue Reading FTC Brings the Heat on Pyrex Manufacturer’s “Made in USA” Claims for Products Made in China

For years, lead generators have obtained telephone numbers for their clients to call by obtaining the consumer’s consent to receive calls from certain entities specifically identified by the lead generator. A typical model uses language that asks for the consumer’s consent, via a checkbox or otherwise, to receive marketing calls from a few of the lead generator’s marketing partners named in the consent request.

A popular variation of this model is to include, instead of a list of partners by name, a clickable reference to “marketing partners” in the consent language. The specific marketing partners are visible only when the consumer clicks the link and views whatever list of marketing partner names the lead generator has provided.

Sometimes, the marketing partners list has several dozens, hundreds, or thousands of names.  With such long lists, one might ask: How many names on the marketing partners list is too many to evidence meaningful consent by the consumer to receive calls or texts? As recently declared by the Federal Communications Commission (FCC), the answer is 5,329.  As a practical matter, the number might be a whole lot less.

Continue Reading Telemarketing Lead Generators: How Many “Marketing Partners” Is Too Many?

At the tail end of 2022, the Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking (NPRM) seeking comment on proposals to streamline the processing of satellite and Earth station applications under Part 25 of its rules. FCC Chairwoman Jessica Rosenworcel explained that “the new space age needs new rules,” given the growing space economy, and that the public and private sectors will need to collaborate better.

Innovations in the space industry, from low Earth orbit (LEO) constellations to developments in in-space servicing and manufacturing (ISAM), have led to an influx of satellite and gateway Earth station applications in recent years. The impact? Greater demand on the agency’s resources and longer and less predictable wait times for its review and grant of applications. In fact, the rapid rise in the number of satellites being launched, coupled with the novelty and complexity of many of the new systems and spacecraft, caused Rosenworcel to announce plans to create a Space Bureau at the agency.

Continue Reading FCC Planning New Rules to Streamline Satellites and Earth Station Applications

Like clockwork, the Federal Trade Commission (FTC) has issued its Adjustments to Civil Penalty Amounts for 2023. As instructed by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, the FTC and other similarly situated federal agencies ring in the new year not with champagne and confetti, but with adjusted maximum civil penalty amounts.

The adjustments, which occur every year, are intended to account for inflation and are based on the cost-of-living adjustment that is calculated from U.S. Department of Labor year-to-year Consumer Price Index data.

The FTC has revised its rule for adjusting civil monetary penalty amounts by listing increased civil penalty amounts for violations under 16 different provisions of law within its jurisdiction. For example, the penalty amounts for unfair or deceptive acts or practices under Sections 5(l), 5(m)(1)(A), and 5(m)(1)(B) of the FTC Act are set to increase from $46,517 to $50,120.

The FTC’s new penalty amounts will be applied to assessments made after publication of the new amounts in the Federal Register (the “effective date”), which should take only a few days. Significantly, the new penalty amounts—once effective—will apply to violations that took place even before the effective date of the adjustment, as long as the assessment itself occurs after the effective date for the adjustment. Inflation strikes again!

Bookmark our All About Advertising Law blog and subscribe to our monthly newsletter for more updates.

Courts continue to grapple with issues surrounding Florida’s Telephone Solicitation Act, including what types of claims are sufficient to allege a concrete injury in fact to establish standing under Article III.

In December, the saga continued, with a federal court in Florida finding that the plaintiff did not adequately allege injury despite receiving five unsolicited text messages from the defendant between November 2020 and July 2021. In Muccio v. Global Motivation, Inc., the plaintiff filed a five-count class action complaint alleging violations of the Florida Telephone Solicitation Act (FTSA) and the Telephone Consumer Protection Act (TCPA). The defendant filed a motion to dismiss, arguing that the plaintiff failed to allege that she suffered an “injury in fact” sufficient to give rise to Article III standing.

The court agreed with the defendant, citing the framework set forth by the Eleventh Circuit in Salcedo v. Hanna, which found that the receipt of a single unsolicited text message does not give rise to Article III standing in a TCPA class action. Applying Salcedo, the court found that there were no allegations of “financial loss or other pecuniary harm,” nor did plaintiff allege he was unable to use his phone for other functions because of the unwanted messages, or that his cell phone was searched, disposed of, or seized for any length of time.

Continue Reading Florida Court Dismisses Telemarketing Claims for Failure to Plead Injury; Plaintiff Appeals to Eleventh Circuit

On December 27, 2022, the Federal Communications Commission (FCC) released an Order on Reconsideration and Declaratory Ruling clarifying the express consent requirements for calls placed to residential landlines under the Telephone Consumer Protection Act (TCPA) and the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act).

First, a little background: The TCPA restricts a caller’s ability to place telephone calls to a residential landline using artificial or prerecorded voice messages without the prior express consent of the called party, unless exempted by statute or FCC rule or order.

Continue Reading FCC Clarifies Express Written Consent Requirement for Exempt Callers under TCPA and TRACED Act

On December 20th, 2022, the Federal Trade Commission published new guidance regarding claims about the benefits and safety of health-related products: Health Products Compliance Guidance. This guidance replaces the Commission’s previous guidance, Dietary Supplements: An Advertising Guide for Industry, issued in 1998. The new guidance expands the scope to include other health-related products, such as foods, over-the-counter drugs, and devices.

Continue Reading FTC Announces Health Products Compliance Guidance

This week the Federal Trade Commission unveiled hefty settlements with Epic Games Inc.—the creator of the video game Fortnite—to resolve separate actions alleging violations of Section 5 of the FTC Act and the Children’s Online Privacy Protection Act (COPPA), respectively.

Epic Games will pay $245 million in consumer redress to settle the alleged Section 5 violations in an FTC administrative proceeding and will pay $275 million in monetary penalties to settle the COPPA action in federal court. The cases highlight two hot spots for the FTC—dark patterns and children’s privacy.

In its administrative complaint, the FTC alleges that Epic Games used dark patterns, making the gameplay interface confusing and tricking players into making in-game purchases, often when they did not intend to. Specifically, the complaint alleges that:

Continue Reading Ready, Aim, Fire: FTC Scores Record-Breaking $520 Million Settlement with Fortnite Creator Epic Games

At its December 14, 2022 open meeting, the Federal Trade Commission announced it would publish a notice in the Federal Register seeking comment on potential updates or revisions to its existing Green Guides. The Green Guides are the agency’s guidance document intended to “help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the FTC Act.” Earlier, the FTC had indicated that the guides would be revised this year, but that has apparently slipped to next year.

The pre-publication version of the notice, which will be published later in the Federal Register, indicates that the FTC is requesting comments on all aspects of the Green Guides, and in it the agency notes that in the 10 years since the last update, increased attention to environmental concerns has resulted in “the proliferation of environmental benefit claims [which] includes claims not currently addressed in the Guides.” In addition, the FTC wants to ensure that the guides respond to changes in consumer perception.

Continue Reading FTC Seeks Public Comment on Possible Green Guides Revisions

Once a company or individual learns they are a target of a Federal Trade Commission investigation, they need to quickly make a series of decisions, then take action.

After being notified that the FTC has begun an investigation, a company or individual must preserve potentially relevant documents and refrain from obstructing or impeding the investigation. It’s easy to lose focus on these basic requirements when caught up in the day-to-day demands of responding to an FTC investigation. Those demands typically require the marshalling of significant resources to identify, collect, review, and produce data, information, and documents going back several years. However, failing to address these issues can have draconian consequences, as highlighted by two recent cases.

Continue Reading Spoliation and Failure to Disclose: What Gets Swept Under the Rug in FTC Investigations Lands in a Dangerous Pit