FTC COMPLIANCE LAWYER

INTERNET MARKETING AND ADVERTISING COMPLIANCE

Proven success in numerous facets of marketing and advertising law, and a go-to resource for up-to-date strategic guidance on applicable federal and state laws, rules and regulations applicable to the Internet, affiliate marketing, lead generation, telemarketing, email marketing and social media spaces. As a leading FTC compliance attorney, Richard regularly coordinates result-oriented preventative reviews of marketing materials designed to help build brands through effective campaigns, while ensuring compliance with applicable requirements and to avoid becoming a target of costly regulatory scrutiny.

FTC compliance lawyer Richard B. Newman provides creative solutions and strategic guidance designed to minimize Internet marketers' exposure to government investigations and litigation.  He helps clients to see issues from the viewpoint of regulators, government officials and policymakers in furtherance of integrating complex regulatory and legal requirements into business strategies.

He is an attorney that advises clients on the full range of consumer protection compliance issues affecting virtually every aspect of advertising, marketing and promotions law.

Effective and Unmatched Compliance Solutions

Richard B Newman Ftc Compliance Lawyer

Leveraging his extensive subject matter knowledge of the business operations of Internet marketers, the regulatory environment and his consumer protection litigation experience, Richard assists clients with preventative compliance and risk management measures designed to enhance advertising and promotional marketing efforts while limiting the risk of FTC and other regulatory investigations relating to unfair or deceptive or deceptive practices that pose threats to clients' interests.

Investigations and enforcement actions pursuant to Section 5 of the FTC Act typically relate to "unfair or deceptive acts or practices."  The Commission also uses a number of tools to protect consumers’ privacy and personal information, including enforcement actions designed to stop violations and ensure that companies take affirmative remedial steps.  The FTC also enforces a variety of sector-specific laws, including the Truth in Lending Act, the CAN-SPAM Act, the Children’s Online Privacy Protection Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Telemarketing and Consumer Fraud and Abuse Prevention Act.

Compliant creative materials and programs are critical.  Richard regularly defends corporate and individual clients against FTC claims alleging deceptive or unfair trade practice acts across multiple media channels.

Hinch Newman Selected to Author Consumer Protection Section of Prestigious ALM FTC Law, Practice and Procedure Treatise

Hinch Newman possesses demonstrated distinct subject matter expertise and a track record of success in the fields of digital advertising compliance, investigations (CIDs) and regulatory defense. As a result, FTC compliance and defense attorney Richard B. Newman has been selected to assume authorship of the Consumer Protection Section of the prestigious American Lawyer Media International Federal Trade Commission: Law, Practice and Procedure Treatise, a comprehensive resource for developments of concern to advertisers, marketers and legal professionals that practice before the Commission.

The firm’s contributions feature detailed analyses of emerging legal regulatory issues pertaining to advertising and marketing compliance, civil investigative demands, judicial litigation and administrative enforcement actions, rulemaking, civil penalties and consumer redress, legislative updates, evolving guidelines of unfairness and deception, data privacy in designated market sectors, telemarketing regulations and case law developments.

Hinch Newman Selected to Author Consumer Protection Section of the Prestigious ALM FTC Law, Practice and Procedure Treatise

The FTC Has More Than 50 Rules and Guides

Most have narrow application that applies to certain industries. Some rules and guides to apply more broadly and there are some that digital marketers should be familiar with.

Richard Newman's advertising and marketing perspective, awareness of evolving legal regulatory requirements and proven track record of success enable him to capably provide constructive compliance advice designed to avoid unwanted regulatory scrutiny and competitor challenges.

What are "Deceptive Acts or Practices"?

The FTC relies heavily on its authority to stop "deceptive acts or practices.”  Deceptive acts or practices is defined as a "material" representation, omission or practice that is "likely" to mislead a reasonable consumer.

Deception is material if likely to affect the consumer’s conduct or decision with regard to the decision to purchase a product or service.  No proof of actual deception or consumer injury is needed.

If an act or practice has the tendency or capacity to mislead, it is prohibited by the Federal Trade Commission Act. Deceptive practices can include, without limitation, bait advertising, endorsements and testimonials, use of the word "free" and price claims and guarantees.  Misrepresentations, failing to lawfully substantiate claims and failing to appropriately disclose material terms are aggressively enforced by the FTC.

What are "Unfair Acts or Practices"?

"Unfair acts or practices" are prohibited by Section 5 of the FTC Act.  Proof of intent is not an element of an unfairness violation.

By 1964 enough cases had been decided to enable the FTC to identify three factors that it considered when applying the prohibition against consumer unfairness.  These were: (i) whether the practice injures consumers; (ii) whether it violates established public policy; (iii) whether it is unethical or unscrupulous.

The second "unfairness" standard asks whether the conduct violates public policy as it has been established by statute, common law, industry practice, or otherwise.  Sometimes public policy will independently support an FTC action.  The final "unfairness" standard asks whether the conduct was immoral, unethical, oppressive or unscrupulous.  This test has proven to be largely duplicative because conduct that is truly unethical or unscrupulous will almost always injure consumers or violate public policy, as well.

Unjustified consumer injury is the primary focus of the FTC Act, and the most important of the "unfairness" criteria.   By itself it can be sufficient to warrant a finding of unfairness.

To justify a finding of unfairness the injury must satisfy three tests.

First, it must be substantial.  Second, it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces.  Third, it must be an injury that consumers themselves could not reasonably have avoided.

The FTC is not concerned with trivial or merely speculative harms.  In most cases a substantial injury involves monetary harm.  Unsubstantiated health and safety risks may also support a finding of unfairness.

The injury must not be outweighed by any offsetting consumer or competitive benefits that the sales practice also produces.  A seller's failure to present complex technical data on his product may lessen a consumer's ability to choose, for example, but may also reduce the initial price he must pay for the article.

The injury must be one which consumers could not reasonably have avoided.  Certain types of sales techniques may prevent consumers from effectively making their own decisions, and that corrective action may then become necessary.  Most of the FTC's unfairness matters are brought under these circumstances.

These unfairness provisions do  not apply to cases pursuant to the FTC's authority to prosecute "deceptive acts or practices."  An experienced FTC compliance lawyer assists marketers to implement effective promotional content desined to comply with the the agency's regulatory policies.

Advertising Disclosures

The Federal Trade Commission provides guidance for mobile and other online advertisers that explains how to make disclosures clear and conspicuous to avoid deception.  Known as the .Com Disclosures - How to Make Effective Disclosures in Digital Advertising, takes into account the expanding use of smartphones with small screens and the rise of social media marketing. It also contains mock ads that illustrate the updated principles.

The .Com Dislosure guidance emphasizes that consumer protection laws apply equally to marketers across all mediums, whether delivered on a desktop computer, a mobile device, or more traditional media such as television, radio, or print.

If a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous.  Under the guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view the ad.  The guidance also explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate a Commission rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used.

The previous guidance stated that to help ensure clear and conspicuous disclosures, advertisers should consider the disclosure’s placement and proximity to the relevant ad claim, its prominence, whether audio disclosures are loud enough to be heard, and whether visual disclosures appear for long enough to be noticed.  Although the previous guidelines defined proximity as “near, and when possible, on the same screen,” and stated that advertisers should “draw attention to” disclosures, the new guidance says disclosures should be “as close as possible” to the relevant claim.

The updated Dot Com Disclosures calls on advertisers to avoid using hyperlinks for disclosures that involve product cost or certain health and safety issues.  The new guidelines also call for labeling hyperlinks as specifically as possible, and they caution advertisers to consider how their hyperlinks will function on various programs and devices.

The guidance points out that advertisers using space-constrained ads, such as on some social media platforms, must still provide disclosures necessary to prevent an ad from being deceptive, and it advises marketers to avoid conveying such disclosures through pop-ups, because they are often blocked.

FTC Compliance Attorney for Biz Opp Rule Guidance

The Business Opportunity Rule requires business opportunity sellers to give prospective buyers specific information to help them evaluate a business opportunity, thus ensuring that the prospective purchasers have the information they need in order to assess the risks of buying a work-at-home program or any other business opportunity.

CAN-SPAM Act

The CAN-SPAM Act establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out penalties for violations.

Advertising Claim Substantiation

The underlying legal requirement of advertising substantiation is that advertisers and ad agencies have a reasonable basis for advertising claims before they are disseminated.  The FTC vigorously enforces this existing legal requirement that advertisers substantiate express and implied claims, however conveyed, that make objective assertions about the item or service advertised.

Objective claims for products or services represent explicitly or by implication that the advertiser has a reasonable basis supporting these claims. These representations of substantiation are considered material to consumers.  That is, consumers would be less likely to rely on claims for products and services if they knew the advertiser did not have a reasonable basis for believing them to be true.  Therefore, a firm's failure to possess and rely upon a reasonable basis for objective claims constitutes an unfair and deceptive act or practice in violation of Section 5 of the Federal Trade Commission Act.

ROSCA, Negative Option Marketing, Automatic Renewals and Continuity Offers

FTC compliance attorney Richard Newman regularly advises digital marketing clients on the negative options, including negative option offers, subscription programs, automatic renewals, continuity plans, and free-to-pay or nominal-fee-to-pay conversion offers.  A seasoned advertising lawyer is of paramount importance for marketers that wish to understand the current patchwork of state and federal laws governing negative options.

“Negative options” refers broadly to subscriptions that automatically continue or renew unless the consumer takes an affirmative action to prevent it from continuing or renewing.

Negative option marketing generally falls into four categories:

  • Pre-notification plans
  • Continuity plans
  • Automatic renewals
  • Free-to-play or nominal-fee-to-pay conversion offers

Negative option marketing is governed by numerous federal and state legal regulations, including, but not limited to, the FTC's Restore Online Shoppers’ Confidence Act, the FTC Act, the Telemarketing Sales Rule and individual state auto-renewal laws.

At the state level, California and New York aggressive ARL statutes and aggresively enforce violations.  Consult with an experienced FTC compliance attorney to discuss applicable federal and state legal requirements, including, but not limited to, current programs, material  disclosures, conspicuous notice, expess consent, simple cancellation mechanisms and other applicable considerations to ensure adherence to applicable legal regulations.

 

As applicable and without limitation, negative option-based consumers must be conspicuously and appropriately informed of and consent to recurring charges, charge increases, the need to cancel to avoid any or further charges, how to cancel, cancellation deadlines, the billing amount and frequency of charges, the date charges will be submitted for payment.

COPPA

COPPA imposes certain requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age.

Deceptive Pricing Guides

The Deceptive Pricing Guides address different kinds of pricing representations: representations by marketers that their current price is a bona fide discount from their former price (a "sale" or "discount"); comparisons to others' prices and to manufacturers' suggested retail prices; and representations about special prices based on the purchase of other products (like gifts with purchase or buy-one-get-one -- BOGO -- offers).

The fundamental principle for these guides is truthfulness.  Advertisers should not represent that a price is special if it is not.  Do not call something a "sale" if a normal price is being charged.

Endorsement Guides and Social Media Campaigns

Contact an experienced FTC ad law attorney to discuss the complex nuances of complying with the FTC’s Endorsement Guides, including information about disclosing material connections between advertisers and endorsers., and how consumer protection principles apply in social media and influencer marketing.

Social media campaigns must also comply with FTC regulations.  Experienced FTC advertising compliance lawyers with practical digital marketing industry experience, such as Richard, review marketing copy and business models for adherence with Federal Trade Commission and government regulatory compliance requirements.

Richard represents advertisers, media companies, and agencies in connection with all aspects of advertising, marketing and promotions. He frequently counsels clients on new media issues, including social media, user-generated content, blogging and mobile marketing.  He works closely with clients to develop and implement blogging and social media policies and procedures and reviews clients’ social media campaigns to ensure compliance with the Federal Trade Commission’s Endorsement Guides and .com Disclosure Guides.

"Free" and Similar Representations

The Free Guide is based on the idea that all "Free" offers or claims about special bargains "must be made with extreme care so as to avoid any possibility that consumers will be misled or deceived."  What that means, first, is that "... a purchaser has a right to believe that the merchant will not directly and immediately recover, in whole or in part, the cost of the free merchandise or service by marking up the price of the article which must be purchased, by the substitution of inferior merchandise or service, or otherwise."  Additionally, all of the terms and conditions should be clear and conspicuous and proximate to the offer of “Free” merchandise or services.

The Free Guide also provides rules about the frequency of any such offers and the circumstances in which they can and cannot be made.  For example, no “Free” offer should be made "in connection with the introduction of a new product or service offered for sale at a specified price unless the offeror expects, in good faith, to discontinue the offer after a limited time and to commence selling the product or service promoted, separately, at the same price at which it was promoted with the “Free” offer."

Made in USA Claims

The FTC Act gives the FTC the power to bring law enforcement actions against false or misleading claims that a product is of U.S. origin.  Traditionally, the FTC has required that a product advertised as Made in USA be "all or virtually all" made in the U.S.  The FTC also issued an Enforcement Policy Statement on U.S. Origin Claims to provide guidance to marketers who want to make an unqualified Made in USA claim under the "all or virtually all" standard and those who want to make a qualified Made in USA claim.

FTC guidance also offers some general information about the U.S. Customs Service’s requirement that all products of foreign origin imported into the U.S. be marked with the name of the country of origin.

Mail, Internet or Telephone Order Rule

The FTC's Mail, Internet or Telephone Order Rule (aka "Mail Order Rule) requires sellers that solicit buyers to order merchandise through the mail, via the Internet, or by phone to have a reasonable basis to expect that the sellers can ship within the advertised time frame, or, if no time frame is specified, within 30 days.  The Mail Order Rule also requires that, when a seller cannot ship within the promised time, the seller must obtain the buyer’s consent to a delay in shipping or refund payment for the unshipped merchandise.

Privacy and Data Security

Richard also practices in the area of data privacy and security.  He assists clients with both preventive data security as well as managing compliance issues in the aftermath of a data breach.  His experience includes auditing and evaluating clients’ websites and privacy/data security policies, drafting website privacy notices and internal corporate privacy policies, and compliance with breach notification laws.  As an FTC compliance lawyer, Richard has significant experience with technology-related regulatory considerations.

Data Protection Leader exclusively featured Richard in a recent article he authored on COPPA compliance.  The article, "Complying with the FTC's COPPA Rule in a Data-Driven World,"  addresses regulatory enforcement trends and who must comply with COPPA.

FTC Compliance Lawyer With Unparalleled Industry Knowledge

Richard's clients are among the most visible in the online marketing sector.  While more and more FTC compliance lawyers claim expertise about the business of advertising and marketing, he understands the needs and regulatory concerns of companies in key industry segments, from telecommunications and lead generation to health and nutraceuticals.

He has represented clients before various units of the Federal Trade Commission and in state regulatory investigations, including, without limitation, comprehensive actions in connection with negative option marketing and free trial offers.

Richard regularly counsels clients on false and deceptive advertising, claims substantiation, privacy, lead generation, telemarketing, email marketing (e.g., CAN-SPAM and state anti-SPAM legislation), endorsement and testimonial issues, and negative option marketing.  He also advises clients with respect to drafting and negotiating a variety of marketing agreements.

FTC Compliance Attorney for TCPA Guidance and Litigation Defense 

The Federal Communications Commission has adopted new one-to-one consent rules aimed at closing the “lead generator loophole” in the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.  The new rules require lead generators and website publishers to revise their websites and marketing vehicles.

The FCC’s one-to-one consent ruling modifies the TCPA’s express written consent definition to require that consumers to select each “seller” (i.e., the providers of goods or services) that it wants to receive telephone calls from, individually.  It also limits the scope of consent to matters “logically and topically” related to the transaction.

Express written consent is required under the TCPA for any telephone call that is made using regulated technology.  This includes, but may not be limited to, autodialers, prerecorded or artificial voice calls, AI voice calls, and any form of outbound IVR or voicemail technology (including ringless voicemail) using prerecorded or artifical voice messages.

Prior to the FCC's one-to-one consent ruling, online webforms and comparison shopping websites linked to countless companies that a consumer would purportedly be providing consent to receive calls from, even if not reasonably related to a consumer's request.  Now, website operators are required to y identify each provider that may contact a consumer and a consumer must affirmatively select each such provider in order to constitute lawful consent.

Contact an experienced FTC compliance attorney with questions about the one-to-one consent rule.  A seasoned TCPA compliance and defense lawyer can assist marketers and lead generators with various legal regulatory issues applicavble to their business models, including implementing protocols designed to ensure that leads are being captured lawfully, assessing whether marketers are using regulated technology, ensuring that the caller is first in possesion of applicable consent records prior to calls being made, evaulating whether the one-to-one consent rule also applies to numbers on the Do-Not-Call Registry even if dialed manually, and various state laws that may apply.

FTC Lawyers for Performance Marketers

FTC lawyers like Richard Newman regularly provide digital advertising counsel and regulatory advice to companies in many different product and service categories.  He is immersed in all aspects of digital media and spends much of his advising clients on how to minimize the legal risks associated with performance marketing.  His experience with transactional matters relating to the dissemination of advertising campaigns sets him apart from other FTC attorneys and advertising compliance counsel.

Notably, Richard Newman has conducted advertising law workshops for other FTC lawyers on behalf of leading legal education providers.  As a result of the breadth of his knowledge and extensive experience, as well as his grasp of the regulatory policy, Richard's opinion is also regularly solicited by national and trade publications on issues that impact the advertising and marketing industry.

FTC Compliance Attorney and Authority in the Field

FTC compliance attorney Richard Newman is an authority in the digital marketing legal space, strategizing with  clients that operate the the full spectrum of tech-based business models on how to structure ecommerce, online, social media and telemarketing campaigns to be both effective and comply with FTC laws, regulations, guidelines and best practices.

As a thought leading FTC compliance lawyer to the digital marketing industry, Richard Newman is highly respected as digital marketing counsel.  He advises direct, Internet and digital marketers, including performance marketers, affiliate networks, lead generators, lead buyers, telemarketers, call centers, advertising agencies, publisher affiliates, pay-for-performance marketers, advertisers and tech entrepreneurs on how to earn money safely online while minmizing legal risks.

Contact an FTC compliance attorney that focuses exclusively on FTC marketing and advertising matters.