FTC Regulation Tracker—January 2024

Advertising Law

February 06, 2024

We ended last month’s update noting that the Federal Trade Commission (FTC) had finalized its Combating Auto Retail Scams (CARS) Rule. Shortly following the Final Rule’s publication, the National Automobile Dealers Association and the Texas Automobile Dealers Association challenged the legality of the Rule in the Fifth Circuit, and seeking a stay of the rule while the challenge was pending. In the face of this challenge, this month the Commission chose to stay the effective date of the Rule.

As the final versions of the dozens of proposed rulemakings the FTC has disseminated trickle in, we can expect to see more such challenges to the FTC’s regulatory reach, and, likely, more indefinite stays. While nothing is certain, it seems only a matter of time before one or more of these challenges winds its way to the Supreme Court.

Also in January, the FTC issued its Notice of Proposed Rulemaking on updates to its Energy Labeling Rule. While the Energy Labeling Rule’s Advanced Notice of Proposed Rulemaking asked some broad, overarching questions, comments from and tailored to specific industries within and around the energy sector were clearly influential in shaping the direction of significant aspects of the Proposed Rule. We’ve said it before, but it bears repeating: comments matter.

FTC Proposal	Proposal Type	Manatt Insights	Comments Due
Energy Labeling Rule	Notice of Proposed Rulemaking	Understanding the Changing Regulatory Landscape Under an Activist Federal Trade Commission	April 2, 2024
Children’s Online Privacy Protection (COPPA) Rule	Notice of Proposed Rulemaking	FTC Proposes Major Updates to Children’s Online Privacy Protection Act	March 11, 2024
Unfair or Deceptive Fees (Junk Fees)	Notice of Proposed Rulemaking	Demystifying Junk Fees: What they are, regulatory considerations, and B2C marketing implications FTC Seeks to Ban “Junk Fees” With a New Proposed Rule	February 7, 2024
Power Output Claims for Amplifiers	Supplemental Notice of Proposed Rulemaking		Deadline Passed
Use of Consumer Reviews and Testimonials	Notice of Proposed Rulemaking	The Comments Are In On the FTC’s Proposed Rule Banning Fake Reviews and Testimonials. What’s Next? FTC’s Proposed New Rule Prohibiting Fake Reviews and Testimonials	Deadline Passed
Health Breach Notification Rule	Notice of Proposed Rulemaking	FTC and HHS Send Letter Warning of Risks From Online Tracking Technologies FTC Proposed Health Breach Notification Rule Changes Target the Online Collection of Health Data	Deadline Passed
Negative Option Rule	Notice of Proposed Rulemaking	Sellers Beware: FTC Proposes Changes to Automatic Renewal Laws Automatic Renewal Laws: Everything to Know About the Surge in Litigation and Regulatory Enforcement	Deadline Passed
Guides for the Use of Environmental Marketing Claims (Green Guides)	Proposed Guidance	The FTC Takes on ESG: Proposed Updates to the Green Guides	Deadline Passed
Non-Compete Rule	Notice of Proposed Rulemaking	FTC Proposes Ban on Noncompetes	Deadline Passed
Ophthalmic Practice Rule	Notice of Proposed Rulemaking	FTC Sends Warning Letters to Eyeglass Prescribers	Deadline Passed
Commercial Surveillance and Data Security	Advance Notice of Proposed Rulemaking	Protecting Consumer Health Data: FTC and State Actions to Close the Privacy Gap	Deadline Passed
Telemarketing Sales Rule Revisions: B2B & Tech Support Calls, Negative Options	Advance Notice of Proposed Rulemaking	FTC Proposes Expansion of TSR That May Impact SMB Lending	Deadline Passed
Telemarketing Sales Rule: Recordkeeping	Notice of Proposed Rulemaking	FTC Proposes Expansion of TSR That May Impact SMB Lending	Deadline Passed
Earnings Claims	Advance Notice of Proposed Rulemaking	2022 FTC and NAD Roundup	Deadline Passed
Risk Based Pricing	Notice of Proposed Rulemaking		Deadline Passed
Government and Business Impersonation	Notice of Proposed Rulemaking		Deadline Passed
Business Opportunity Rule	Advance Notice of Proposed Rulemaking		Deadline Passed
Funeral Industry Practices	Advance Notice of Proposed Rulemaking		Deadline Passed
Care Labeling of Textile Wearing Apparel and Certain Piece Goods	Notice of Proposed Rulemaking		Deadline Passed