FTC keeps it real in "natural" claims, one step closer to federal civil trade protection, and more in this edition of Advertising Law News & Analysis

6 min

Announcement:

Venable's Products Liability and Mass Torts Practice Named Chambers Award for Excellence Finalist

Chambers USA, one of the nation's leading guides to law firms and attorneys, has announced the finalists for its annual Award for Excellence. For the second time in three years, Venable was named a finalist in the Product Liability category. Finalists are singled out for notable achievements over the past year, including outstanding work, impressive strategic growth, and excellence in client service. Last year, Chambers USA praised Venable's Products Liability and Mass Torts Practice Group for its "deep bench" and "handling [of] headline litigation in the drug and device sector, often playing a lead trial counsel role." One source quoted by Chambers said, "[Venable's] responsiveness along with their trial strategy and experience is what a client is looking for in a product liability defense firm."

Read Venable's press release to learn more about the firm's Products Liability team and the Chambers award.



Analysis:

FTC Keeps Things Real in Flurry of "Natural" Enforcement Actions

While the Food and Drug Administration (FDA) is still considering whether to issue guidance over the use of the term "natural" in food products, the Federal Trade Commission (FTC) steamrolled ahead last week with a flurry of settlements and a complaint over deceptive use of the terms "all natural" and "100% natural" in the advertising of sunscreens, shampoos, and other styling/beauty products, write Venable attorneys Randal M. Shaheen and Christopher L. Boone in a recent post to the firm's advertising law blog.

The FTC's four proposed settlements and new administrative complaint over the use of the phrase "all natural" all involved products that appear to contain clearly synthetic ingredients. Shaheen and Boone write that while the FTC's actions last week did not shed much light on some of the "grayer" areas of what it means for a product to be natural, they may add more impetus to calls for some type of regulatory definition of "natural" to emerge.

Read the full blog post to learn how these actions may help shape standards for the use of "natural" claims.

Federal Civil Trade Secret Protection One Step Closer to Reality

Most states have enacted a version of the Uniform Trade Secrets Act (UTSA), which supplies a framework for imposing liability with respect to the misappropriation of trade secrets. In a recent post to Venable's Trade Secrets and Transitions Blog, Venable attorneys Richard J. Frey and Melissa C. McLaughlin write that after several years of attempts, the federal government is close to enacting its own version of civil trade secret protection.

The Defend Trade Secrets Act of 2016, or DTSA, would amend the federal criminal code to create a civil cause of action for misappropriation of trade secrets. The Act recently passed the Senate with overwhelming support and the bill has moved to the House.

Read the full blog post to learn what comes next in the DTSA's journey to becoming a law.

Read the text of the DTSA, as passed by the Senate.

Musical Chairs at the FTC and SCOTUS Weighs in on Asset Freezes

In a recent post to the firm's Advertising Law Blog, Venable partner Leonard L. Gordon discusses a number of recent staff moves and departures at the FTC, as well as a United States Supreme Court (SCOTUS) decision that may – with the right set of facts – give lawyers of defendants whose assets have been frozen some ammunition to try and pry funds loose for attorneys' fees.

Read the full post to learn more about the SCOTUS decision and the staffing moves.

Read the Court's majority and dissenting opinions in Luis v. United States.

No Free Pass for Bureau in PHH v. CFPB Oral Arguments

In a much-anticipated oral argument between a New Jersey-based mortgage services firm (PHH) and the Consumer Financial Protection Bureau (CFPB), the D.C. Circuit last week considered a wide array of legal issues that could restrict the enforcement authority of the CFPB. And, write Venable attorneys Allyson B. Baker, Andy Arculin, and Peter S. Frechette in a recent client alert, the court seemed receptive to many of the appellant's points, leaving many subject to CFPB oversight waiting with bated breath for the court's decision.

After finding itself on the wrong end of a $6 million disgorgement penalty issued by a CFPB Administrative Law Judge for allegedly violating the Real Estate Settlement Procedures Act's (RESPA) prohibition on payment of "kickbacks" or things of value in exchange for referrals through a captive mortgage reinsurance arrangement, PHH appealed the case to CFPB Director Richard Cordray. Cordray not only reaffirmed the CFPB's position that the contracts in question were not protected under the safe harbor, but also increased the penalty to $109 million.

On appeal to the D.C. Circuit, PHH challenged these rulings and asserted that the Director's order should be overturned because the make-up of the Bureau is unconstitutional, the Bureau's approach of making law by enforcement action is unfair, and damages should be limited by RESPA's statute of limitations. The D.C. Circuit's ruling in this case, and any subsequent appeals, will play an interesting role in the development of law around the CFPB—both specific to the CFPB's interpretation and use of RESPA, as well as more generally regarding the Bureau's approaches to enforcement and its authority.

Read the full client alert to learn more about PHH's arguments before the D.C. Circuit and what the pending decision could mean for industries regulated by the CFPB.



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