We periodically stumble across older FTC investigations that have new relevance, and post about them as reminders. That happened recently as we get more questions about the use of recycled content and the desire to tout U.S.-based manufacturing. Although the FTC’s Enforcement Policy Statement and regulation regarding Made in USA claims do not mention how to evaluate recycled content, in a 2014 FTC Staff Advisory Opinion the Staff declined to consider the recycling process as a “new life cycle” and disregard the origin of the jewelry returned for recycling.

Christie Grymes Thompson

(202) 342-8633

Bio - https://www.kelleydrye.com/Our-People/Christie-Grymes-Thompson

Katrina Hatahet

(202) 342-8553

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Downloading an app, buying a product or service, or otherwise interacting with a company frequently requires consumers to consent to multi-page contracts. In a new proposed rule, the CFPB would require nonbank financial companies subject to the CFPB’s supervisory jurisdiction to register any use of such form contracts if they contain terms that seek to waive or limit consumer rights and legal protections.

Ioana Gorecki

(202) 342-8417

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We have previously discussed the emphasis that the FTC has put on fake reviews throughout 2022, with proposed updates to the Endorsement Guides and a proposed rule to combat fake reviews in addition to enforcement efforts. State Attorneys General continue to also make fake reviews a top priority. Washington Attorney General Bob Ferguson closed out 2022 by filing suit against Allure Esthetic, a Seattle-area plastic surgery provider, and Javad Sajan individually, alleging a series of practices.

Paul Singer

(202) 342-8672

Bio - https://www.kelleydrye.com/Our-People/Paul-L-Singer

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The 2019 movie Yesterday is about a world without the Beatles. The 2022 lawsuit over Yesterday is about a movie without Ana de Armas. Two fans who each paid $3.99 to rent the movie based on seeing the actress in the trailer decided to sue Universal after seeing that she had been removed from the final cut of the film.

https://www.adlawaccess.com/2022/12/articles/ana-de-armas-fans-move-forward-on-false-advertising-suit/

Gonzalo Mon

(202) 342-8576

Bio - www.kelleydrye.com/Our-People/Gonzalo-E-Mon

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While State Attorneys General have been clear that social media companies are generally on their radar for a variety of consumer protection concerns, TikTok has been the latest to make headlines in recent weeks. For example, multiple states have banned TikTok from government phones, and a federal government ban may soon follow, because of concerns about the Chinese government’s control over the platform. Higher education institutions are also joining in the app’s ban with Georgia public colleges and the University of Oklahoma being two of the most recent to do so.

Recently, Indiana Attorney General Todd Rokita filed two complaints focused on the TikTok app, which were based on two very different theories, including a foreign component in one. The cases both allege violations of the state’s Deceptive Consumer Sales Act.

adlawaccess.com/2022/12/articles/it-may-be-time-for-tiktok-to-change-its-ways-if-state-ags-have-any-say/

Paul L. Singer


[email protected]


(202) 342-8672


Bio - www.kelleydrye.com/Our-People/Paul-L-Singer

Abigail Stempson

(202) 342-8678

Bio - www.kelleydrye.com/Our-People/Abigail-Stempson

Beth Chun


[email protected]


(202) 342-8671


Bio - www.kelleydrye.com/Our-People/Beth-Bolen-Chun

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The FTC has released two companion settlements resolving allegations that Epic Games (maker of the popular video game Fortnite) violated the Children’s Online Protection Act (COPPA) and the FTC Act, with Epic to pay $520 million in penalties and consumer redress. The cases build on existing FTC law and precedent but add new dimensions that should interest a wide array of companies subject to FTC jurisdiction.

Notably, the first case alleges COPPA violations (compromising the privacy and safety of users under 13) but adds allegations that Epic violated teens’ privacy and safety, too. And the second case alleges unauthorized in-app purchases – not just by kids, which was the focus of earlier FTC cases, but by users of all ages. Both cases rely on unfairness theories in extending their reach. Both incorporate the (now ever-present) concept of dark patterns (generally defined as practices that subvert or impair user choice). And both got a 4-0 Commission vote, with a strong concurrence from Republican Commissioner Wilson explaining her support for the FTC’s use of unfairness here. Neither case names any individuals.

https://www.adlawaccess.com/2022/12/articles/two-epic-cases-from-the-ftc-spotlight-on-coppa-unfairness-teens-dark-patterns-in-app-purchases-cancellations-and-more/#more-11227

Jessica Rich

(202) 342-8580

Bio - https://www.kelleydrye.com/Our-People/Jessica-L-Rich

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Yesterday, the FTC’s Bureau of Consumer Protection released its Health Products Compliance Guidance—a sweeping overhaul of the 1998 Guidance, Dietary Supplements: An Advertising Guide for Industry. Unlike the recently announced effort to review its Green Guides, the FTC did not seek public comment prior to issuing this update.

According to an FTC blog post that accompanied its release, the new Guidance purports to “correct misunderstandings” and “urban myths” that have circulated about FTC substantiation standards. In actuality, however, the new Guidance represents a recitation of some of the positions the agency has taken in health-related enforcement matters over the last decade, continuing a stark departure from the prior “flexible” approach to substantiation set forth in the 1998 Guidance.

While FTC guidance does not have the force and effect of law, if a person or company fails to comply with a guide, the Commission might bring an enforcement action alleging an unfair or deceptive practice in violation of the FTC Act. This makes the new Guidance a must-read for any company operating in the food, supplement, personal care, health equipment or app, or related industries.

John E. Villafranco

(202) 342-8423

Bio - https://www.kelleydrye.com/Our-People/John-E-Villafranco

Kristi L. Wolff

(202) 342-8805

Bio - https://www.kelleydrye.com/Our-People/Kristi-L-Wolff

Jaclyn M. Metzinger

(212) 808-7843

Bio - https://www.kelleydrye.com/Our-People/Jaclyn-M-Metzinger

Glenn T. Graham

(973) 503-5917

Bio - https://www.kelleydrye.com/Our-People/Glenn-T-Graham

Caitlin R. Hickey

(202) 342-8503

Bio - https://www.kelleydrye.com/Our-People/Caitlin-R-Hickey

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Money-back guarantees can often be subject to detailed terms and conditions. When advertising those guarantees, clients often ask us how much has to be disclosed in an ad itself, versus how much can be disclosed on a landing page. Although there isn’t a bright line rule, a recent NAD challenge sheds light on what practices may lead to complaints.

https://www.adlawaccess.com/2022/12/articles/nad-challenge-addresses-disclosures-for-money-back-guarantees/

Gonzalo Mon

(202) 342-8576

Bio - www.kelleydrye.com/Our-People/Gonzalo-E-Mon

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Recently, we reported that the AGs (including the DC Attorney General’s Office) are paying close attention to delivery and service fees. Sure enough, the DC AG’s office filed yet another lawsuit related to delivery fees on December 7.

The District alleges that Amazon’s Flex tipping practices deceived customers from 2016-2019, stopping only after an FTC investigation ultimately resulted in a 2021 settlement. While Amazon had represented that all tips would be paid to drivers, in actuality, tips were deducted out of payments to those drivers. This resulted in a net benefit to Amazon, rather than to the drivers, which the AG claims was contrary to customer expectations and deceptive even in the eyes of its own employees. The District is seeking civil penalties and a court order to ensure that Amazon is never able to engage in this practice again. The FTC settlement included a $61.7 million payment which represents the full amount that Amazon allegedly withheld from drivers and will be used by the FTC to compensate drivers. Amazon argues that the FTC settlement has resolved the issues in this matter.

https://www.adlawaccess.com/2022/12/articles/tipping-point-for-state-attorneys-general/

Paul L. Singer


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(202) 342-8672


Bio - www.kelleydrye.com/Our-People/Paul-L-Singer

Abigail Stempson

(202) 342-8678

Bio - www.kelleydrye.com/Our-People/Abigail-Stempson

Beth Chun


[email protected]


(202) 342-8671


Bio - www.kelleydrye.com/Our-People/Beth-Bolen-Chun

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Green marketing is very much in vogue, and so is suing companies over their green marketing. If you want to avoid those suits, you should generally start by looking at the FTC’s Green Guides. But a lot has changed since the Green Guides were last updated in 2012, so they don’t always provide clear answers to today’s questions. That may change, now that the FTC has started the process of updating the Guides.

Recently, the FTC announced that it is inviting the public to submit comments in response to a series of 31 broad questions, most of which have various sub-questions.

https://www.adlawaccess.com/2022/12/articles/ftc-starts-process-of-updating-green-guides/

Gonzalo Mon

(202) 342-8576

Bio - https://www.kelleydrye.com/Our-People/Gonzalo-E-Mon

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