Keeping with our theme of predictions for 2020, here's a quick recap of some of the issues that the folks at the Federal Trade Commission are telling marketers to look out for in the coming year.
- Consumer privacy — Having brought record-breaking cases in the last year, marketers should expect that the FTC will continue to focus on consumer privacy, data security, and COPPA issues in 2020. (If you're looking for in-depth analysis on privacy issues, check out our firm's "Focus on the Data" blog.)
- Endorsements, certifications, and influencers — Long a top priority at the FTC, you should expect that the FTC will continue to bring cases when the agency believes that marketers have misled consumers about their relationships with endorsers and influencers or have used certifications improperly. The FTC continues to emphasize the importance of being transparent about relationships between marketers and influencers in social media, having recently released additional guidance to influencers.
- Consumer reviews — Over the past year, the FTC has brought cases alleging that marketers have misrepresented the independence of consumer reviews, have used fake reviews, and have improperly prohibited consumers from posting negative reviews. If you're soliciting or using consumer reviews, or if you have provisions in your contracts which limit what consumers are allowed to say, this is a good time to take a look at what the FTC is saying about these issues.
- Health claims — Long a mainstay of FTC enforcement, "Health-related misrepresentations remain a core enforcement priority." If you're making health claims, it's going to be critical that you've got competent and reliable scientific evidence to back them up.
- FinTech — Nothing that the "pace of innovation can be dizzying," the FTC brought several FinTech-related cases last year related to the marketing and servicing of loans, crowdfunding, and cryotocurrency. You should expect that the FTC will continue to pay attention to the use of new types of financial products, particularly where there is the potential for significant financial harm to consumers.
- Financial injury — Highlighting that the FTC brought some big cases last year alleging significant financial injury to consumers, the FTC wrote, "Challenging illegal practices that hit people in the wallet is the FTC’s bread and butter, and 2019 will be known for cases that returned a substantial amount of bread to American consumers." With increasing debate among FTC Commissioners about the effectiveness of its consumer protection program, we should expect to see more big cases in 2020 that demonstrate that FTC enforcement has teeth.
- Telemarketing — Marketers should also expect to see continued attention on telemarketing and robocalls in the coming year.
The FTC's goal isn't to take marketers by surprise. For the most part, the FTC is pretty transparent about its law enforcement agenda and where it is focusing its enforcement efforts. If you're looking to avoid FTC problems in 2020, making sure you're on top of these issues would be a great start.
Jeffrey A. Greenbaum, Managing Partner of Frankfurt Kurnit since 2010, is one of the country’s leading advertising lawyers. He is a partner in the Frankfurt Kurnit Klein + Selz's Advertising, Marketing & Public Relations Group and has extensive experience representing advertisers, advertising agencies, and media companies on advertising, branded entertainment, and intellectual property matters. He is also the Chairman of the Global Advertising Lawyers Alliance.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney. To contact Jeffrey A. Greenbaum ESQ click here.
