On September 19, Acting Chairman Maureen K. Ohlhausen reaffirmed the Federal Trade Commission’s on concrete consumer injury, rather than hypothetical harm, in deciding what enforcement actions to initiate.
Ohlhausen also outlined a number of situations that warrant the FTC’s attention. Although not exhaustive, she indicated that the FTC focuses upon the following types of injuries:
- Deceptive representations about a product or service that materially impact a consumer’s purchasing decisions, including those that pertain to privacy and security;
- Consumer financial injury;
- Health or safety injury (e.g., personal information is misused by former spouses); and
- Unwarranted and abusive privacy intrusions (e.g., SPAM and robocalls)
In short, the FTC has a renewed focus on matters where consumers are actually injured or likely to be injured, or where companies do not keep their promises, to the consumer’s detriment. The agency focuses on objective, concrete harms such as monetary injury and unwarranted health and safety risks.
The FTC has stated publically that it should not be focusing on speculative injury, or on subjective types of harm. In every consumer protection case it brings, it has announced that it shall endeavor to ensure that it seeks and obtains for consumers relief that is tied to consumer injury.
You should consult with an FTC defense lawyer if you have received a civil investigative demand (CID) from a regulatory agency.
Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
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