On February 14, 2022, Mary Gardner and Len Gordon published “FTC Enforcement of Advertising Claims” in Practical Guidance. The following is an excerpt:
Section 5 of the FTC Act (the Act) (15 U.S.C. § 41) is the United States’ primary federal statute addressing unfair and deceptive advertising and marketing claims. The Act empowers the FTC to prescribe rules, investigate claims, enjoin and fine violators, and provide recommendations to Congress in connection with its findings. The Act effectively supports truth-in-advertising by requiring all marketing claims to be truthful and evidence-based and not unfair and/or deceptive in any way. An advertisement or business practice is considered unfair if it causes or is likely to cause substantial injury to the consumer that, practically speaking, is unavoidable, and the benefits of such advertisement or business practice do not outweigh the injury caused thereby. Violators of the Act are subject to fines and injunctions. An advertisement or business practice is considered deceptive if it involves a representation, omission, or practice that is likely to mislead the consumer acting reasonably under the circumstances. Most states have enacted their own versions of the Act (i.e., Little FTC Acts).