August 13, 2020

Advertising Law News and Analysis

2 min

Deepening the Divide: Will the Sixth Circuit’s Expansive Reading of the ATDS Definition Survive?

The issue of what exactly is an autodialer, subject to the restrictions of the Telephone Consumer Protection Act, may eventually be resolved. But for now, the outlook is much like the long-ago Brooklyn Dodger's chance of winning the World Series: "Wait 'Til Next Year." On July 29, 2020, a divided, 2-1 panel in the Sixth Circuit issued its opinion in Allan v. Pennsylvania Higher Education Assistance Agency, deepening the circuit split over the breadth of the TCPA. Specifically, the Sixth Circuit held that any device that dials from a stored list of numbers is sufficient to constitute an "automatic telephone dialing system."

FTC Follows up on Enforcement Priorities with Complaint Against Merchant Cash Advance Provider

Following a warning from earlier this year, the FTC recently filed a complaint against a group of corporate and individual defendants for allegedly misleading and deceiving small business "merchant cash advance" (MCA) customers. Structured properly, an MCA product offers an alternative to standard commercial credit under which the MCA provider purchases the right to receive a fixed amount of the customer’s receivables to be paid based on a percentage of the customer's daily receipts.

FTC Turns Up the Heat on Deceptive Insulation and Energy-Saving Claims

On July 28, 2020, the FTC filed four complaints in federal courts across the country against companies who sell paint products used to coat homes and other buildings. At issue in the complaints are paint products that claimed to help insulate homes or buildings, saving the owner money on utility bills. The cases serve as a reminder that the FTC remains on the lookout for deceptive "green" claims, and that claims of "green" benefits must be substantiated.

Proposed FTC Rule to Allow Civil Penalties for Deceptive "Made in USA" Claims

Proud that your products are "Made in the USA"? Before you wave the flag, know that an unqualified Made in USA claim means that your product must be "all or virtually all" made in the United States, and the Federal Trade Commission has bolstered its enforcement authority over deceptive Made in USA claims with a new proposal to allow civil penalties for violations of its Made in the USA standards.