Last week, the FTC sent high profile warning letters to two trade associations, the American Beverage Association (AmeriBev) and the Canadian Sugar Institute, and 12 registered dieticians regarding inadequate disclosures in the dieticians’ social media posts. While the specific influencer posts varied across dietician, they all related to the safety of aspartame, an artificial sweetener, and other messaging regarding the benefits of consuming sugar-containing products. Further, some dieticians even went so far as to call the World Health Organization’s warnings regarding aspartame and artifici ..read more

As we reported Friday, the FTC has proposed a rule to ban misleading and hidden fees. While that initiative is pending, California Governor Gavin Newsom signed similar legislation, SB 478, into law. Effective July 1, 2024, the California statute prohibits advertising, displaying, or offering a price for a good or service that does not include all mandatory fees or charges other than taxes or fees imposed by a government on the transaction, or postage or carriage charges that will be reasonably and actually incurred to ship the physical good to the consumer. The legislation takes aim at hidden ..read more

The FTC announced a Notice of Proposed Rulemaking (NPRM) targeting misleading and hidden fees, commonly known as “junk fees,” and how businesses may advertise and market prices to consumers. The NPRM was drafted based on over 2,000 public comments to the FTC’s Advance Notice of Proposed Rulemaking published in November 2022. The proposed rule would prohibit businesses from advertising prices for goods or services that hide or omit mandatory fees (“hidden fees” imposed later but before the purchase is made). Sellers also would be prohibited from misrepresenting fees and be required to disclose ..read more

BBB National Programs’ Children’s Advertising Review Unit (CARU) has released new Guardrails for Child-Directed Advertising and Privacy in the Metaverse. As explained in a BBB press release, the Guardrails are intended to provide companies with best practices as they navigate the complexities of engaging with children in metaverse experiences. The Guardrails offer “actionable recommendations” on developing metaverse experiences directed to children, complying with existing advertising and privacy law, and engaging responsibly with children online. These guidelines build on earlier CARU gu ..read more

The FTC announced an enforcement action against online shoe seller Hey Dude, Inc. (a subsidiary of Crocs, Inc.) alleging Hey Dude suppressed more than 80% of consumer reviews that provided less than four out of five stars. The complaint also alleges multiple violations of the FTC’s Mail Order Rule between 2020 and 2022. A proposed consent order would require Hey Dude to pay nearly $2 million and take certain steps to prevent future violations. According to the FTC, Hey Dude used a third-party online management review tool to publish primarily positive consumer reviews while declining to publis ..read more

In June 2023, EPA announced the dates for the 2024 submission period for information required under the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) rule. The information is collected every four years from manufacturers and importers of certain chemicals in commerce, generally when production volumes for those chemicals are 25,000 pounds or greater in a given reporting year. The 2024 submission period runs from June 1, 2024 to September 30, 2024. EPA is in the process of updating its guidance materials for the 2024 reporting cycle; therefore, many particulars of the report ..read more

A longer version of this blog post originally appeared as an article in Retail TouchPoints: Policing Your Brand on Online Marketplaces: an Intellectual Property Guide for Retailers. Further duplication is not permitted. Retailers often face brand policing challenges on online resale platforms such as Wayfair, Overstock.com, and eBay. Resellers account for a significant portion of retail sales on these websites. Resellers tend to be small to midsize entities but are nevertheless able to reach a large number of US consumers. It’s thus unsurprising that problems arise daily, often relating to bra ..read more

As reported on Hunton’s Insurance Recovery Blog, the Fifth Circuit recently held that Blue Bell Creameries’ commercial general liability (CGL) insurers do not have a duty to defend the ice cream company in a shareholder lawsuit, which arose from a Listeria outbreak. The decision underscores the importance of coordination of different coverages and policies across insurance programs, as well as the potential perils policyholders may face if forced to seek recovery for certain losses under non-traditional policies. Background In 2015, a Listeria outbreak caused bodi ..read more

The FTC recently announced a Notice of Proposed Rulemaking (NPRM) aimed at curbing deceptive consumer reviews and endorsements. The NPRM primarily aims to expand the Commission’s ability to seek civil penalties against businesses using false and misleading reviews online, which the FTC maintains can cause significant harm to consumers and competitors. Among other things, the proposed rule would prohibit businesses from: Writing or selling consumer reviews attributable to nonexistent individuals, non-purchasers, or individuals that misrepresent their experiences with a product or service; Proc ..read more

The US Securities and Exchange Commission (the “SEC”) on June 9, 2023, approved the listing standards Nasdaq and NYSE established requiring listed issuers to adopt and comply with written clawback policies meeting the standards specified by Rule 10D-1. The listing standards will take effect on October 2, 2023. Listed issuers, including publicly-traded retailers, will have until December 1, 2023 (i.e., 60 days after October 2) to adopt a clawback policy that is compliant with the new listing standards. For a detailed summary of the clawback rules and more information on how to comply with the l ..read more