FTC Regulation Tracker—November

Advertising Law

November 28, 2023

A number of interesting developments out of the Federal Trade Commission (FTC) this month.

First, the FTC’s Notice of Proposed Rulemaking on “Junk Fees” was officially published in the Federal Register, meaning the 60-day comment period is now running. Comments are due by January 8, 2024. Given the wide-ranging scope of the rule—if adopted as written, it would require nearly all businesses to change the way they disclose the prices of goods and services they sell—comments on this rule will be crucial to crafting a rule that protects consumers while remaining cognizant of the potential burden on businesses. If you are interested in having your industry’s voice heard by filing a comment, Manatt can help.

While comments have just opened for “Junk Fees,” they recently closed for the FTC’s Notice of Proposed Rulemaking Regarding the Use of Consumer Reviews and Testimonials. The proposed rule is highly significant for marketers and consumers. Violation of a trade regulation rule enables the FTC to seek civil penalties of up to $50,120 per violation. The FTC could take the position that each fake review or testimonial is a separate violation, which would add up to substantial civil penalties. The FTC can also seek monetary redress for consumers and others injured by fake reviews and testimonials. Manatt’s detailed analysis of the 105 comments the FTC received demonstrates the importance of the comment process in shaping FTC rulemaking.

Finally, the FTC has codified its amendment to the Safeguards Rule. As explained in our comprehensive article on the amendment, these modifications depart from the FTC’s historical approach that allowed covered institutions broad discretion on the details necessary to achieve compliance with the safeguards standards and instead impose an enumerated list of specific requirements. As the amendment is now final, it has been removed from the tracker.

FTC Proposal	Proposal Type	Manatt Insights	Comments Due
Unfair or Deceptive Fees (“Junk Fees”)	Notice of Proposed Rulemaking	FTC Seeks to Ban “Junk Fees” With a New Proposed Rule	January 8, 2024
Labeling Requirements for Alternative Fuels and Alternative Fueled Vehicles	Request for Public Comment		December 26, 2023
Power Output Claims for Amplifiers	Supplemental Notice of Proposed Rulemaking		Deadline Passed
Use of Consumer Reviews and Testimonials	Notice of Proposed Rulemaking	What’s Next for the FTC’s Proposed Rule Banning Fake Reviews and Testimonials? 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
Energy Labeling Rule	Advance Notice of Proposed Rulemaking	Understanding the Changing Regulatory Landscape Under an Activist Federal Trade Commission	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
Motor Vehicle Dealers	Notice of Proposed Rulemaking		Deadline Passed
Care Labeling of Textile Wearing Apparel and Certain Piece Goods	Notice of Proposed Rulemaking		Deadline Passed

To view the previous FTC Regulation Tracker updates, please see below:

FTC Regulation Tracker—October 2023

FTC Regulation Tracker—August 2023

FTC Regulation Tracker—July 2023

FTC Regulation Tracker—June 2023

FTC Regulation Tracker—May 2023

FTC Regulation Tracker—April 2023