The Rule-A-Palooza continues at the FTC. On March 7, 2024, the Federal Trade Commission (FTC) released a Final Rule that updates the recordkeeping requirements under the Telemarketing Sales Rule (TSR). The Final Rule requires telemarketers and sellers to maintain additional records relating to their telemarketing transactions. The FTC also extended the period for which all records must be kept—now five years instead of two. The Final Rule also extended the prohibition of material misrepresentations and false or misleading statements in business-to-business (B2B) calls.

New Recordkeeping Requirements

According to the FTC, the newly added recordkeeping requirements are meant to help the FTC identify the telemarketer and seller and to link the content of the telemarketing calls with the call detail records to determine TSR violations. The new requirements are as follows:Continue Reading FTC Piles on Additional Recordkeeping Requirements and Business-to-Business Protections

Is a product recyclable if it is made of recyclable materials? Or is it recyclable when it can be recycled by waste management facilities? Last month, the United States District Court for the Northern District of California attempted to tackle these questions in response to a motion to dismiss in Della v. Colgate.

The plaintiff alleged that Colgate-Palmolive Company engaged in false and misleading advertising claims about the recyclability of its toothpaste tubes with claims like “First of Its Kind Recyclable Tube” and images of the universal recycling symbol. The plaintiffs claimed these statements were misleading because the products cannot be recycled at most waste management facilities. Colgate argued that since the tube is made from recyclable material—specifically a material that can be recycled at most facilities—the “recyclable” claim was not misleading.Continue Reading California Court Cites FTC Green Guides, Allowing Plaintiff’s Challenge of Colgate Toothpaste Tubes “Recyclable” Claims to Proceed

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into surviving an FTC investigation in this week’s episode.


If your advertising or marketing practices have triggered a Federal Trade Commission (FTC) investigation and you have received a civil investigative demand (CID) (i.e., administrative subpoena) or access letter, what’s next? Every situation is unique, and every strategy, heavily fact dependent. Below are a few points to consider based on our considerable years of experience handling significant FTC matters and working with and against senior FTC officials.

Keep these points in mind when navigating an FTC investigation:

Continue Reading Surviving an FTC Investigation: An Excerpt from the Advertising Law Tool Kit

On February 15, 2024, the Federal Trade Commission (FTC) announced a two-step approach to tackling impersonation fraud. First, the FTC finalized a rule regulating the impersonation of businesses and government entities (the Impersonation Rule). Later that day, the FTC proposed a revision to the Impersonation Rule to extend liability to those impersonating individuals.

The Impersonation Rule deems it unfair or deceptive to falsely pose as or misrepresent affiliation with a government or business entity. This could include using government seals, business logos, or spoofed email addresses. Even more broadly, the rule prohibits using government or business lookalike insignias or marks without prior authorization. The rule will become effective 30 days after it has been finalized.Continue Reading Impersonation Rulemaking: FTC Takes Steps to Tackle AI

Episode 5 of the Ad Law Tool Kit Show, “Surviving an FTC Investigation,” is now available. Listen here, or search for it in your favorite podcast player.

The Federal Trade Commission (FTC) is investigating your advertising or marketing practice—not something you ever want to hear. But if your organization has received a civil investigative demand (CID), what’s next?

In this episode, Venable partner Roger Colaizzi and our former partner Alex Megaris discuss how adopting a strategic approach is key, as is understanding the FTC staff’s pivotal role in case resolution.Continue Reading Listen to Episode 5 of Venable’s Ad Law Tool Kit Show – “Surviving an FTC Investigation”

On Tuesday, February 13, the Federal Trade Commission (FTC) held an informal hearing regarding the Proposed Rule on the Use of Consumer Reviews and Testimonials. Three interested parties each had the opportunity to submit 30 minutes of oral commentary on the proposed rule and generally voiced concerns about the rule’s ability to address the issues surrounding consumer reviews.

The FTC’s proposed rule seeks to prohibit certain unfair or deceptive acts involving consumer reviews and testimonials. Specifically, it would prohibit buying positive reviews, selling or obtaining fake reviews, suppression of negative reviews, and selling fake social media indicators. Perhaps most importantly, if the rule becomes final, the FTC would be able to seek civil penalties against those engaged in violative review and testimonial practices. Previously, the FTC has only been able to obtain injunctive relief when combating fake reviews, and would have to rely on state attorneys general to join a suit to obtain monetary relief.Continue Reading FTC Contemplates Rule Aimed at Combating Deceptive Consumer Reviews

As we anxiously await the Federal Trade Commission’s (FTC) update of the Green Guides, advertisers should keep in mind the various “green” state laws that could affect the production and marketing of certain products. For example

Voluntary Carbon Market Disclosures Act (VCMDA)

The VCMDA is a new California law that imposes disclosure requirements on public and private companies of all sizes that:

  • Operate in California and/or make claims in California regarding their climate performance, including claims regarding the achievement of net zero emissions, that the entity (or its product) is carbon neutral and/or does not add net carbon dioxide or greenhouse gas (GHG) emissions, that the entity has made “significant reductions” to its GHG emissions, or similar claims
  • Operate in California and/or make climate-performance claims in California and use or purchase voluntary carbon offsets (VCOs) sold in California
  • Market or sell VCOs in California (regardless of whether they make climate-performance claims)

Continue Reading Making Green Claims? Keep in Mind New State Laws

Join us over the next few months as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of product safety and recalls in this week’s episode

On rare occasions, notwithstanding the best of engineering design and testing, a consumer product contains a manufacturing or design defect, or a failure of adequate instructions, that results in its being unsafe for use and a potential for causing bodily harm. This most often reveals itself when consumers bring the matter to the attention of a manufacturer, retailer, or direct-response marketer, or upon receipt of a notice from the Consumer Product Safety Commission (CPSC).Continue Reading Product Safety and Recalls: An Excerpt from the Advertising Law Tool Kit

Tractor maker Kubota North America Corporation will pay a $2 million civil penalty for falsely labeling its replacement parts as “Made in USA,” the largest civil penalty ever in a Federal Trade Commission (FTC) Made in USA case.

In its complaint, released last week, the FTC alleges that since at least 2021, Kubota has labeled thousands of replacement parts as Made in USA when, in fact, they were wholly imported. After shifting production of some of its products overseas, the company failed to update its package designs that included the Made in USA labels, resulting in the sale of millions of replacement parts with the false label.  Making matters worse, at least in the FTC’s eyes, Kubota was previously sued by the FTC in 1999 for falsely claiming that a line of lawn tractors it manufactured was Made in USA and was subject to an FTC order in that case that expired in 2019. Continue Reading FTC Issues Record-Breaking Civil Penalty in “Made in USA” Case

Earlier this week, the Federal Trade Commission (FTC) held its informal hearing on the proposed amendments to the Negative Option Rule. Clearly on display was not only industries’ concern about the impact of the proposed rule, but also concern about the FTC’s haste toward implementing the rule changes.

As a refresher, the FTC generally must promulgate rules under the Magnuson-Moss Warranty Federal Trade Commission Improvements Act (Mag-Moss) instead of the less-stringent Administrative Procedures Act. Under Mag-Moss, the FTC must first issue an advanced notice of proposed rulemaking (ANPR) seeking public comment, issue a notice of proposed rulemaking (NPRM), have reason to believe that the conduct at issue is “prevalent,” conduct informal hearings allowing parties to present their views and finally publish the final rule with a “statement of basis and purpose” accompanying the rule.Continue Reading Unpacking the FTC’s Negative Option Rule Informal Hearing