Consumer Protection Law Commons^™

The Revival Of Section 5: A Return To The Ftc’S Roots In A Time Of Democratic Crisis, Shaoul Sussman

Center for Law and the Economy

On November 10, 2022, the Federal Trade Commission (FTC or the “Commission”) issued a policy statement on the scope of unfair methods of competition under section 5 of the Federal Trade Commission Act (FTCA). This policy statement marked a significant shift, reviving a broad interpretation of the agency’s authority to police anticompetitive conduct. The antitrust defense bar reacted with alarm, arguing that the principles are overly ambiguous and lack guidance. This Essay contends that reaction is misplaced. The statement draws on a rich body of U.S. Supreme Court and circuit court precedent that the antitrust bar seems to have largely …

“Spinning Wheel Got To Go Round”: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Tom Kierner, Stephen T. Middlebrook

Articles by Maurer Faculty

The past year reminds us of the rock lyrics from “Spinning Wheel” on Blood, Sweat & Tears’s 1968 self-titled record—“What goes up, must come down/Spinning Wheel got to go round”—because there have been many changes in strategy and reversal of policy since President Trump’s inauguration in January 2025. Our Survey documents these changes and reversals as they affect electronic payments and financial services. This year’s Survey also reports on warnings from state and federal regulators aimed at bank and non-bank providers of consumer financial services. Part II examines an FTC enforcement action related to the unfair and deceptive marketing of …

How Ftc Data Security Cases Inform The Development Of Legally Accountable Software, Jeff Kosseff, Ellis Fenske, Christopher Brown, Daniel S. Roche

Fordham Intellectual Property, Media and Entertainment Law Journal

Over the past two decades, the Federal Trade Commission has brought dozens of enforcement actions against companies for failing to adequately secure customers’ personal information. The actions typically result in a consent decree, in which the company agrees to improve its data security practices and provide the FTC with oversight of those improvements. When the FTC first brought data security cases, its orders generally required the companies to adopt “reasonable” data security programs. But a 2018 Eleventh Circuit opinion, LabMD v. FTC, requires the orders to contain far more specific data security requirements. In this Article, we conduct an in-depth …

Target(Ed) Advertising, Derek E. Bambauer

UF Law Faculty Publications

Targeted advertising—using data about consumers to customize the ads they receive—is deeply controversial. It also creates a regulatory quandary. Targeted ads generate more money than untargeted ones for apps and online platforms. Apps and platforms depend on this revenue stream to offer free services to users, if not for their financial viability altogether. However, targeted advertising also generates significant privacy risks and consumer resentment. Despite sustained attention to this issue, neither legal scholars nor policymakers have crafted interventions that address both concerns, and existing regulatory regimes for targeted advertising have critical gaps.

This Article makes three key contributions to the …

I’M Not Lovin’ It: Re-Thinking Fast Food Advertising, Brody Shea, Michael S. Sinha

Journal of Food Law & Policy

In 1971, the Federal Trade Commission (“FTC”) and the Food and Drug Administration (“FDA”) agreed to prevent injury and deception to the consumer in advertising, detailing their respective roles in a Memorandum of Understanding (“MOU”). The MOU has been amended and an addendum added since 1971, but the material provisions have remained consistent for over a half-century. The FTC has regulatory authority over fast food advertising while the FDA regulates fast food, which creates a proverbial fork in the road. The fork in the road widens when considering the FDA has an active role in curbing the obesity epidemic through …

Data In Distress: Effectuating State Data Privacy Laws During Bankruptcy, Cameron Love

Emory Law Journal

In 2000, an online toy retailer, Toysmart.com, attempted to liquidate consumer data to pay creditors in its bankruptcy case. The attempted sale drew objections from the Federal Trade Commission and forty-seven state attorneys general. Five years later, Congress attempted to resolve privacy concerns in bankruptcy, amending the Bankruptcy Code to provide clear procedures for the liquidation of “personally identifiable information.” Recently, scholars have criticized these amendments, characterizing them as “limited,” “outdated,” and “privacy theater.” This Comment adds to these criticisms, arguing the amendments’ failure to mandate consideration of relevant nonbankruptcy law puts these permissive sales procedures on a collision course …

The Disrupted Path To Becoming Easy, Breezy, Beautiful: How Companies Are Deceiving Consumers With Their Animal Testing Products, Wendy Chao

University of San Francisco Law Review

No abstract provided.

Cookies, Pop-Ups And Commercials: How Tech Companies' Privacy Promises Are Preserving Their Data Dominance, Cailley Lapara

Capstones

As antitrust sentiment focused on Big Tech from regulators and consumers grows, companies like Google and Apple and more have announced plans to move away from the behavioral ad business model that brought the companies to the size they are today. This trend is marketed to customers as a way to address their growing concerns over privacy and data collection. It also comes as the companies face sweeping antitrust litigation and legislation that would break up the firms. But the companies' claims of moving towards privacy are sketchy at best, and appear to serve as a way for the companies …

Advising 101 For The Growing Field Of Social Media Influencers, Stasia Skalbania

Washington Law Review

The Federal Trade Commission (FTC) protects consumers from unfair and deceptive business practices. In 2019, the FTC released the “Disclosures 101 for Social Media Influencers Guide” (herein referred to as the “2019 Influencer Guide”). The 2019 Influencer Guide outlines advertisers’ and endorsers’ specific responsibilities relating to the advertising and marketing of products on social media platforms. Despite the extensive information provided within the 2019 Influencer Guide, there is still great confusion regarding endorsement disclosure requirements, and many brands and influencers are not in compliance with FTC recommendations. This Comment provides guidance to brands and social media influencers on how to …

Understanding American Privacy, Neil M. Richards, Andrew B. Serwin, Tyler Blake

Scholarship@WashULaw

This Article is an explanation of some of the key features of American privacy law for a general audience. In particular, it tries to explain American privacy law against the critique that because the US currently lacks a European-style privacy law, the United States lacks much in the way of privacy law. We argue that the lack of a European-style data protection law in the United States is not the end of the analysis. This article therefore offers a basic roadmap to American privacy law for the uninitiated. In order to understand American privacy, we believe that it is important …

Influencing The Ftc To Update Disclosure Rules For The Social Media Era, Elizabeth A. Casale

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Consumer Protection In The Age Of Connected Everything, Terrell Mcsweeny

NYLS Law Review

No abstract provided.

Who Are The Real Cyberbullies: Hackers Or The Ftc? The Fairness Of The Ftc’S Authority In The Data Security Context, Jaclyn K. Haughom

Catholic University Law Review

As technology continues to be an integral part of daily life, there lies an ever-increasing threat of the personally identifiable information of consumers being lost, stolen, or accessed without authorization. The Federal Trade Commission (FTC) is the U.S. government’s primary consumer protection agency and the country’s lead enforcer against companies subject to data breaches. Although the FTC lacks explicit statutory authority to enforce against data breaches, the Commission has successfully relied on Section 5 of the FTC Act (FTCA) to exercise its consumer protection power in the data security context. However, as the FTC continues to take action against businesses …

Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett

Scholarly Articles

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection.

Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. …

Paying For Privacy And The Personal Data Economy, Stacy-Ann Elvy

Articles & Chapters

Growing demands for privacy and increases in the quantity and variety of consumer data have engendered various business offerings to allow companies, and in some instances consumers, to capitalize on these developments. One such example is the emerging “personal data economy” (PDE) in which companies, such as Datacoup, purchase data directly from individuals. At the opposite end of the spectrum, the “pay-for-privacy” (PFP) model requires consumers to pay an additional fee to prevent their data from being collected and mined for advertising purposes. This Article conducts a simultaneous in-depth exploration of the impact of burgeoning PDE and PFP models. It …

“Hello…It’S Me. [Please Don’T Sue Me!]” Examining The Fcc’S Overbroad Calling Regulations Under The Tcpa, Marissa A. Potts

Brooklyn Law Review

Americans have received unwanted telemarketing calls for decades. In response to a rapid increase in pre-recorded calls made using autodialer devices, Congress enacted the Telephone Consumer Protection Act (TCPA) in 1992. The TCPA imposes restrictions on calls made to consumers’ residences and wireless phones using autodialer devices, even if they are not telemarketing calls. Congress appointed the Federal Communications Commission (FCC) to prescribe rules and regulations to enforce the TCPA. In 2015, the FCC released an order that defined autodialer more broadly under the statute. Consequently, devices that have the potential to become autodialers in the future, even if they …

Incentivizing The Protection Of Personally Identifying Consumer Data After The Home Depot Breach, Ryan F. Manion

Indiana Law Journal

The breach of payment card systems at the Home Depot in 2014 resulted in the theft of a wealth of information. This Note will examine the facts and legal consequences of the Home Depot breach under three separate frameworks. First, this Note will examine the Home Depot’s responsibilities arising under existing data breach notification statutes. Second, this Note examines the Home Depot’s potential liability if the recent bill introduced by Senator Leahy of Vermont proposing a federal data breach notification framework becomes law; ultimately, however, this Note finds that state notification statutes fail to adequately protect consumers, and Senator Leahy’s …

Payment Methods For Consumer-To-Consumer Online Transactions, David E. Sorkin

Akron Law Review

Participants in online auctions use a variety of payment mechanisms, but checks and money orders still represent the most commonly used means of payment. Credit cards afford greater protection to buyers, but until recently payment by credit card was not even an option for person-to-person transactions. However, several online payment services have been established that enable individuals to make credit card payments to one another, generally with the payment service acting as an intermediary. These services are growing rapidly, mainly because of the speed and convenience that they offer. Yet relatively little attention has been paid to the risks and …

Sacrificing Privacy For Convenience: The Need For Stricter Ftc Regulations In An Age Of Smartphone Surveillance, Ashton Mckinnon

Journal of the National Association of Administrative Law Judiciary

This comment aims to focus on the most frequently used connector that consumers treasure not only for convenience but also as a lifelong necessity - the smartphone. The FTC needs to enforce federally mandated guidelines that will allow the consumer to use technology without the technology using the consumer. Part II of this comment focuses on the type of information that can be collected by various companies, service providers, and agencies from an individual's smartphone, and the intentions of these collectors behind use of this information. Part III evaluates how applications (apps) contribute to this scheme, and, specifically, apps' recordkeeping …

It's Time To Remove The 'Mossified' Procedures For Ftc Rulemaking, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

This article, prepared for The George Washington Law Review’s Symposium “The FTC at 100,” addresses the FTC’s rulemaking process — specifically the quasi-adjudicative process mandated by the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act of 1975 and the additional procedures added by the Federal Trade Commission Improvements Act of 1980 (collectively called the “Magnuson-Moss Procedures”). The article compares how long it took the FTC to complete or terminate the rulemakings it undertook under the Magnuson-Moss Procedures (including amendments to previously issued rules) with the amount of time it took the FTC to issue rules under the “regular” Administrative Procedure …

Hooks V. Forman, Holt, Eliades & Ravin, Llc, Jennifer A. Gong

NYLS Law Review

No abstract provided.

Who Regulates The Robots, Margot Kaminski

Publications

No abstract provided.

Should Section 5 Guidelines Focus On Economic Efficiency Or Consumer Choice?, Robert H. Lande

All Faculty Scholarship

FTC Commissioner Joshua Wright is right that it would be desirable for the Commission to issue Section 5 antitrust guidelines. This article will demonstrate, however, that the best way to formulate Section 5 guidelines is to focus them on the goal of protecting consumer choice, rather than to embrace Commissioner Wright's proposal to neuter the FTC Act by confining it in an economic efficiency straitjacket. Only if Section 5 guidelines were formulated appropriately would they improve consumer welfare during the Commission's second century.

Ftc Regulation Of Endorsements In Advertising: In The Consumer's Behalf?, Whitney F. Washburn

Pepperdine Law Review

The Federal Trade Commission, as recently as 1980, has issued Guides designed to prevent deception of consumers due to misleading product endorsement advertising by celebrities and others. The new Guides indicate that the FTC intends to continue its recent trend offending advertisers and even endorsers liable for deceptive endorsement practices. However, a critical analysis of the Guides, in light of marketplace realities and consumer needs, raises serious question as to whether they are likely to promote accurate endorsement advertising. This comment will explore pre-1980 regulations and trace the progression of controls through the advent of the FTC Guides. The Guides …

Giving Consumers A Leg To Stand On: Finding Plaintiffs A Legislative Solution To The Barrier From Federal Courts In Data Security Breach Suits, Patricia Cave

Catholic University Law Review

No abstract provided.

"You May Have Already Won. . .": Telemarketing Fraud And The Need For A Federal Legislative Solution , Patrick E. Michela

Pepperdine Law Review

No abstract provided.

How The Ftc Could Beat Google, Robert H. Lande, Jonathan L. Rubin

All Faculty Scholarship

The U.S. Federal Trade Commission is rumored to be deciding whether to bring a “pure Section 5” case against Google as a result of complaints that the company unfairly favors its own offerings over those of its rivals in its search results. But the case will fail miserably at the hands of a reviewing court and the agency will be confined to relatively non-controversial enforcement violations if the FTC fails to impose upon itself a tightly bounded and constrained legal framework that contains clear limiting principles. The only way a court will allow the FTC to pursue a pure Section …

Behavioral Advertising: The Cryptic Hunter And Gatherer Of The Internet, Joanna Penn

Federal Communications Law Journal

In an era where three out of every four Americans have Internet access, the term "surfing" has transformed from riding waves into running the risk of having private information gathered, stored, and disseminated-all without the user's knowledge or permission. This new found online practice, known as "behavioral advertising," is a veritable goldmine for those companies that know the game. But will the FTC or Congress soon make new rules concerning how to play? This Note begins by explaining the differences between behavioral targeting and retargeting and the techniques that the two methods use to collect data. This Note then explores …

An Expected Harm Approached To Compensating Consumers For Unauthorized Information Disclosures, Rachel Yoo

Richmond Journal of Law & Technology

On May 22, 2007, the Executive Office of the President of the United States issued a memorandum concerned with safeguarding personal information, which first defined the term “personally identifiable information” as follows:

[I]nformation which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.

Greenwashing The Organic Label: Abusive Green Marketing In An Increasingly Eco-Friendly Marketplace, Greg Northen

Journal of Food Law & Policy

The green wave of environmental advertising among organic food producers, distributors, and retailers begun during the 1990s has become an all-out green tsunami. The organic food market is the fastest growing segment of the American food industry. Consumers are increasingly becoming aware of the impact their purchases have on several environmental issues. As a result, those consumers are becoming more aware of their spending power and are willingly altering their buying practices to purchase from companies that emphasize environmental responsibility. In fact, some retailers' inventory is already being scanned for alternative green products by their customers' iPhones because, guess what, …