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On January 2, the Missouri attorney general filed a petition for preliminary and permanent injunction in Missouri Circuit Court against a nonprofit trust and its registered agent (the defendants) alleging the defendants deceived thousands of state residents by marketing memberships in the trust with the promise that the pooled resources would fund “to-be-completed homes.” The AG alleges that the defendants solicited consumers to attend meetings, purchase memberships, and pay monthly dues, and also asked members to provide additional funds to go towards appliances and other fixtures for the homes. However, the agent defendant allegedly admitted that none of the promised homes were constructed or otherwise provided to the members.
The AG further contends that “none of the solicited funds were ever used or invested towards providing a home to any of the members,” and were instead used to cover the trust’s operating expenses. According to the AG, the defendants’ actions violate state law and constitute false promises, omissions of material fact, and deception. The AG seeks injunctive relief “up to and including prohibiting and enjoining [d]efendants . . . from owning or operating organizations that sell or manage real estate that solicit upfront payments for goods or services, or that solicit charitable contributions.” The AG also seeks restitution for member losses, a fine equal to 10 percent of the restitution amount, a $1,000 fine per violation, and compensation for the state’s costs in pursuing the case.
On December 6, the FTC issued an unanimous opinion against a British consulting and data analytics firm, finding that the firm violated the FTC Act by engaging in “deceptive practices to harvest personal information from tens of millions of [a social media company’s] users.” The information—which was allegedly collected through an application that told users it would not harvest identifiable information—was then used to target potential voters. The opinion also found that the firm engaged in deceptive practices relating to its participation in the EU-U.S. Privacy Shield framework. The opinion follows an administrative complaint issued against the firm in July (previously covered by InfoBytes here). Under the terms of the administrative final order, the firm is prohibited from misrepresenting “the extent to which it protects the privacy and confidentiality of personal information as well as its participation in the EU-U.S. Privacy Shield framework and other similar regulatory or standard-setting organizations,” and it must apply Privacy Shield protections to personal information collected during its participation in the program or return or delete the information. Among other things, the firm also must delete or destroy the personal information collected from consumers through the app, as well as any other information or work product that originated from the information.
On November 13, the Washington attorney general announced an office supply company has agreed to pay $900,000 to resolve an investigation into deceptive computer repair services. According to the AG’s office, the company allegedly used a software program, called “PC Health Check” or similar names, to facilitate the sale of diagnostic and repair services to retail customers that cost up to $200, regardless of whether their computer was actually infected with viruses or malware. The company claimed that the program, which allegedly detected malware symptoms on consumers’ computers, actually based the results on answers to four questions consumers were asked by a company employee at the beginning of the service, including whether the computer had slowed down, had issues with frequent pop-up ads, received virus warnings, or crashed often. After the questions were asked, the responses were entered into the program and a simple scan of the computer was run. The AG’s office claims that the scan had no connection to the malware symptoms results because an affirmative answer by the consumer to any of the four questions always led to the report of actual or potential malware symptoms. The release also states that in 2012, a company employee informed management that “the software reported malware symptoms on a computer that ‘didn’t have anything wrong with it,’” but that the company continued to sell the repair services until 2016 to an estimated 14,000 Washington consumers. According to the AG’s release, Washington is the only state to reach an agreement with the company over the alleged practices in addition to the $35 million national settlement the company and its software vendor reached with the FTC in March for similar conduct. (Previous InfoBytes coverage here.)
On November 5, the FTC and the Utah Division of Consumer Protection filed a complaint in the U.S. District Court for the District of Utah against a Utah-based company and its affiliates (collectively, “defendants”) for allegedly using deceptive marketing to persuade consumers to purchase real estate training packages costing thousands of dollars. According to the complaint, the defendants violated the FTC Act, the Telemarketing Sales Rule, and Utah state law by marketing real estate training packages with false claims through the use of celebrity endorsements. The defendants’ marketing materials allegedly told consumers, among other things, that they would (i) receive strategies for making profitable real estate deals during seminars included in the packages; and (ii) learn how to access wholesale or deeply discounted properties. The complaint argues, however, that the promises were false and misleading, as, among other things, the seminars promoted additional workshops costing more than $1,100 to attend where consumers largely received general information about real estate investing, along with promotions for “advanced training” costing tens of thousands of dollars. In addition, the discounted properties were typically sold or brokered to consumers by the defendants at inflated prices with concealed markups, the complaint alleges. Among other things, the FTC and Utah Division of Consumer Protection seek monetary and injunctive relief against the defendants.
On November 5, the FTC released advertising disclosure guidance for online influencers, titled “Disclosures 101 for Social Media Influencers,” which outlines the FTC’s rules for disclosure of sponsored endorsements and provides influencers with tips and guidance covering effective and ineffective disclosures. The guidance reminds influencers that (i) they should disclose any financial, employment, personnel, or family relationship with the brand; (ii) disclosures should be “hard to miss,” by being placed on pictures, stated in the videos, and repeated throughout livestreams; and (iii) language in disclosures should be simple and clear, and in the same language as the endorsement itself.
For more information on the FTC’s activity covering testimonials and social media influencers, review the recent Buckley Insight, which summarizes several FTC enforcement actions involving online reviews and social media and provides key takeaways for companies considering online advertising and social media campaigns.
The FTC has stepped up its advertising related enforcement activity in recent months, particularly focusing on companies that fail to clearly and conspicuously disclose underlying connections between testimonial providers and product sellers. Summarized below are several recent FTC enforcement actions involving online reviews and social media, as well as some key takeaways for companies considering online advertising and social media campaigns.
Recent FTC Enforcement Actions
First, in its complaint against a skincare company, the FTC alleged that the company misled consumers by posting reviews written by company employees. Specifically, the FTC’s allegations included assertions that (i) product reviews posted on a retailer’s website were not “independent experiences or opinions of impartial ordinary users of the products” and therefore, were false or misleading under Section 5 of the FTC Act; and (ii) the failure to disclose the reviews were written by the owner or employees constitutes a deceptive act or practice under Section 5 of the FTC Act, because the information would “be material to consumers in evaluating the reviews of [the company] brand products in connection with a purchase or use decision.”
In a 3-2 vote the Commission approved an administrative consent order, which notably does not include any monetary relief for consumers. The order prohibits the company from misrepresenting the status of an endorser, which includes misrepresentations that the endorser or reviewer is an “independent or ordinary user of the product.” requires the company and owner to “clearly and conspicuously, and in close proximity to that representation, any unexpected material connection between such endorser and (1) any Respondent; or (2) any other individual or entity affiliated with the product.”
In dissent, two Commissioners objected to the lack of monetary relief, stating, “[t]hat monetary relief can be difficult to calculate should not deter the FTC from seeking it. When the agency’s estimates are uncertain, the Commission sometimes demands no monetary relief whatsoever, which leads to under-deterrence of blatant fraud and dishonesty. This needs to change.”
Second, the FTC also charged a now-defunct company and its owner with selling social media followers and subscribers to motivational speakers, law firm partners, investment professionals, and others who wanted to boost their credibility to potential clients, as well as to actors, athletes, and others who wanted to increase their social media appeal. According to the FTC, the company “provided such users of social media platforms with the means and instrumentalities for the commission of deceptive acts or practices,” in violation of Section 5(a) of the FTC Act.
The Commission unanimously voted to file the proposed court order, which bans the company from selling or assisting others in selling “social media influence.” The order, which was later approved by a federal district court, imposes a $2.5 million monetary judgment against the company owner, but suspends the majority upon the payment of $250,000.
In a business-focused blog post released in conjunction with the enforcement actions noted above, the FTC:
- Reminds marketers that when “people at the helm” are “calling the illegal shots,” the FTC will name them in their individual capacities in actions;
- Emphasizes that companies must instruct their employees and agents to clearly disclose in reviews any material connection to the product; and
- States that the truth-in-advertising provisions of the FTC Act apply to companies that claim to be “strictly B2B,” if they are providing others with the means and instrumentalities for deception.
Relatedly, in February 2019, the FTC approved final consent orders with two marketing companies for, among other things, misrepresenting paid endorsements as independent consumer opinions. The companies allegedly hired Olympic athletes to endorse a mosquito repellent on social media and formatted advertisements to appear as independent statements of impartial publications. The FTC argued that the company failed to disclose, or disclose adequately, that (i) the Olympians were paid to endorse the mosquito repellent; and (ii) the online consumer reviews were by individuals who were reimbursed for buying the product and included statements by the owner and employees of the public relations firm hired to promote the product.
The final consent orders (here and here) require that each company to cease the misrepresentations and notify future endorsers of their responsibility “to disclose clearly and conspicuously, and in close proximity to the endorsement, in any print, radio, television, online, or digital advertisement or communication, the endorser’s unexpected material connection to any Respondent or any other individual or entity affiliated with the product or service.”
Key Takeaways for Online Advertising and Social Media Campaigns:
- These complaints and consent orders incorporate the basic concepts of the FTC’s Endorsement Guides, which address how the prohibition against deceptive practices in section 5 of the FTC Act applies to endorsements and testimonials in advertising. As an FTC blog post puts it:
Suppose you meet someone who tells you about a great new product. She tells you it performs wonderfully and offers fantastic new features that nobody else has. Would that recommendation factor into your decision to buy the product? Probably.
Now suppose the person works for the company that sells the product – or has been paid by the company to tout the product. Would you want to know that when you’re evaluating the endorser’s glowing recommendation? You bet. That common-sense premise is at the heart of the Federal Trade Commission’s (FTC) Endorsement Guides.
- The dissenting commissioners in the skincare product case suggested that the FTC should have obtained “monetary relief” for consumers rather than simply order the company to comply with the law in the future, implying that the company should have been required to make refunds to consumers. The FTC doesn’t have the power to obtain civil penalties for deceptive practices unless the practice violates a specific regulation or order, but many states do have that power.
- The FTC Endorsement Guides don’t have the force of law of a formal regulation but they influence enforcement decision of not only the FTC, but also other federal and state and local agencies. Some of the principles in the Guides have very wide application. For example:
- An endorsement “relating the experience” of one or more people is considered to be a representation that their experience is typical of what most people can achieve with a product or service.
- For example, an ad in which a consumer says “I saved $100 a month on my mortgage by going through XYZ Mortgage” is deemed to be a claim that most consumers will experience the same result.
- A statement that “results not typical,” or even “based on the experiences of a few people—you probably won’t have similar results” usually won’t cure the deceptive impact of a claim by an endorser that he or she achieved certain results, unless the advertiser can provide empirical testing “demonstrating that the net impression of its advertisement with such a disclaimer is non-deceptive.”
- As with any advertising claim, the implied claim of typicality in an endorsement must be substantiated, i.e., the advertiser must have data showing that the results actually are typical.
If you have any questions about the enforcement actions noted above or marketing and advertising related issues, please contact a Buckley attorney with whom you have worked in the past.
On October 21, the FTC announced two separate actions involving social media and online reviews. In its complaint against a skincare company, the FTC alleged that the company misled consumers by posting fake reviews on a retailer’s website and failed to disclose company employees wrote the reviews. The FTC asserted that the retailer’s customer review section is “a forum for sharing authentic feedback about products,” and the company and owner “represented, directly or indirectly, expressly or by implication, that certain reviews of [the company] brand products on the [retailer’s] website reflected the experiences or opinions of users of the products.” The FTC argued that the failure to disclose that the owner or employees wrote the reviews constitutes a deceptive act or practice under Section 5 of the FTC Act because the information would “be material to consumers in evaluating the reviews of [the company] brand products in connection with a purchase or use decision.” In a 3-2 vote, the Commission approved the administrative consent order, which notably does not include any monetary penalties. The order prohibits the company from misrepresenting the status of an endorser and requires the company and owner to disclose the material connection between the reviewer and the product in the future.
The FTC also entered into a proposed settlement with a now-defunct company and its owner for allegedly selling fake social media followers and subscribers to motivational speakers, law firm partners, investment professionals, and others who wanted to boost their credibility to potential clients; as well as to actors, athletes, and others who wanted to increase their social media appeal. According to the FTC, the company “provided such users of social media platforms with the means and instrumentalities for the commission of deceptive acts or practices,” in violation of Section 5(a) of the FTC Act. The Commission unanimously voted to approve the proposed court order, which bans the company from selling or assisting others in selling “social media influence.” The proposed order imposes a $2.5 million monetary judgment against the company owner, but suspends the majority upon the payment of $250,000.
On October 4, the FTC announced that the U.S. District Court for the District of Utah granted a temporary restraining order against a Utah-based company and its affiliates (collectively, “defendants”) for allegedly using deceptive marketing to persuade consumers to attend real estate events costing thousands of dollars. According to the complaint, filed by the FTC and the Utah Division of Consumer Protection, the defendants violated the FTC Act, the Consumer Review Fairness Act (CRFA), and Utah state law, by marketing real estate events with false claims, using celebrity endorsements. The defendants allegedly told consumers they will (i) earn thousands of dollars in profits from real estate investment “flips” by using the defendants’ products; (ii) receive 100 percent funding for their real estate investments, regardless of credit history; and (iii) receive a full refund if they do not make “‘a minimum of three times’” the price of the workshop within six months. The complaint argues that these statements are false or unsubstantiated, and that consumers seeking refunds from the defendants often only received a partial refund on the condition they would not speak to the FTC or other state regulators about the defendants’ products. Among other things, the temporary court order prohibits the defendants from continuing to make unsupported marketing claims and from interfering with consumers’ ability to review their products.
On September 5, NYDFS announced a new investigation into the student debt relief industry. NYDFS is issuing subpoenas to eight student debt relief companies to investigate deceptive practices in the industry, including misrepresenting the ability to achieve debt relief and charging improper fees. According to NYDFS, “deceptive” student debt relief companies charge borrowers high fees to consolidate their multiple student loans, while the U.S. Department of Education will offer the same programs free of charge. NYDFS estimates that New York residents collectively owe over $86 billion in student loans.
On August 8, the FTC announced a settlement with an email management company, which requires the company to delete the personal information it obtained from consumers’ email receipts after allegedly misleading consumers about the company’s services. In the complaint, the FTC alleges that the company, which assisted consumers in unsubscribing from unwanted subscription emails, deceptively told consumers that it would “never touch [their] personal stuff,” when providing the company access to their emails, but in reality, the company would access inboxes to collect consumers’ e-receipts to sell the purchase information to other companies. Moreover, the complaint alleges that, even after consumers chose to decline to allow the company access to their email, the company persisted with deceptive messages, which resulted in “[o]ver 20,000 consumers chang[ing] their minds and decid[ing] to complete the sign-up process after viewing the messages.” The settlement requires the company to: (i) delete from its system, and its parent company’s system, the email receipts it collected from consumers, unless it obtains their affirmative consent to maintain the information; (ii) cease misrepresenting the way it collects, uses, stores, or shares the information it collects; and (iii) notify consumers who have signed up for the service, after viewing the deceptive messages, about how it collects and shares information.
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