Maintaining FTC Compliance and Proving Compliance During FTC Investigations - Federal Lawyer
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Maintaining FTC Compliance and Proving Compliance During FTC Investigations

Companies, Marketing Agencies, Brand Ambassadors, and Influencers All Need to Prioritize FTC Compliance

Elizabeth Stepp
Attorney Elizabeth K. Stepp
FTC Compliance Team Lead
Partner & Yale Graduate

Engaging in truthful advertising isn’t just the right thing to do. It is also required under federal law. The U.S. Federal Trade Commission (FTC) is tasked with enforcing the federal prohibitions against false and deceptive advertising, and companies and individuals that fail to comply can face exhaustive investigations leading to steep penalties.

As a result, all entities and individuals that engage in advertising need to make compliance a priority. This includes companies, marketing agencies, brand ambassadors, and influencers. When prioritizing compliance, entities and individuals must focus on documenting their compliance as well—as being able to prove compliance can be critical for avoiding unnecessary consequences during an FTC investigation.

Experienced FTC Compliance and Defense Counsel

At Oberheiden P.C., we assist companies, firms, and individuals with all aspects of FTC compliance. We also serve as defense counsel for FTC investigations. Whether you have questions about compliance or you have received a civil investigative demand (CID) or subpoena from the FTC, our lawyers can help you make informed decisions, and we can use our experience to help protect you and your company.

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Dr. Nick Oberheiden
Dr. Nick Oberheiden

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Lynette S. Byrd

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Brian J. Kuester

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Amanda Marshall

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Joe Brown

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John W. Sellers

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Linda Julin McNamara

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Aaron L. Wiley

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Roger Bach

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Chris J. Quick

Former Special Agent (FBI & IRS-CI)

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Michael S. Koslow

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Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

10 Tips for Maintaining, Documenting, and Proving FTC Compliance

What does it take to avoid unwanted scrutiny from the FTC (and present a successful FTC defense when necessary)? Here are 10 tips for maintaining, documenting, and proving FTC compliance:

1. Don’t Focus on What Others Are Doing

When it comes to FTC compliance, entities and individuals need to make their own informed decisions. As a result, they should not focus on what others are doing online. Just because a company or influencer is promoting a product or service in a particular way, this does not mean that what they are doing is legal. Violations of the Federal Trade Commission Act (FTC) Act, the FTC’s Endorsement Guidelines, and other pertinent sources of authority are commonplace—and “I saw it online” is not a defense that will work with the FTC.

2. Make Sure You Can Substantiate All Factual Claims

When making factual claims about a product or service, substantiation is critical for avoiding FTC penalties. This means that companies and individuals must have evidence that supports the representations they are making in the marketplace. If an advertiser cannot prove that a representation is true, the FTC will assume that it is false. Even if a factual representation isn’t actually false, being unable to prove otherwise can lead to enforcement action.

3. Avoid Claims That Are Overly Broad or Can’t Be Substantiated

Along with avoiding unsubstantiated claims, advertisers must also avoid making claims that are overly broad and incapable of being substantiated. For example, claiming that a product has “healing properties” or is “the best available” presents a high risk for FTC enforcement. While advertisers can certainly promote their products, they must do so in a way that provides consumers with truthful, complete, and reliable information that they can use to make informed buying decisions.

4. Present an Unbiased View

In this same vein, advertisers must also ensure that they present an unbiased view. For example, if a company promotes its five-star reviews or testimonials, it must also give due exposure to any legitimate one-star reviews or complaints. Misleading consumers by only telling them a portion of what they should know is a form of deceptive advertising that the FTC has focused on combating in recent years.

While companies and firms do not need to publicize illegitimate complaints, when choosing to suppress these, companies and firms should document their justification for doing so. Is the customer misrepresenting his or her experience? Did the customer use the company’s product incorrectly? Being able to explain why a complaint is misleading to consumers can be critical for avoiding unwarranted penalties.

5. Make Sure You Know What the FTC Expects and Requires

When it comes to establishing and documenting compliance, it is important to have a clear understanding of what the FTC expects and requires. When documenting their compliance efforts, companies, firms, and individuals should do so with a specific goal in mind. What are the pertinent legal or regulatory requirements? How does this documentation address those requirements (if it does at all)? What will the FTC expect to see if it conducts an investigation? These are all key questions that advertisers should be able to answer.

6. Use Sponsored Content with Caution

Sponsored content has grown in popularity in recent years, and the FTC has taken notice. All sponsored content must be accompanied by adequate disclosures, and sponsored content used in native advertising must not be misleading as to its source. Here, too, companies, firms, and individuals need to make informed decisions about the content and format of their advertisements (including required disclosures), and they should clearly document their decision-making processes.

7. Use Giveaways and Other Promotions with Caution

Giveaways and other similar types of promotions have also become increasingly popular—especially in the social media and online video realms. The FTC enforces strict rules and requirements for these types of promotions; and, even if your company hires a sweepstakes company to run its giveaway, this doesn’t necessarily mean that your company is protected.

8. Protect Your Customers’ Data

In addition to enforcing advertising compliance, the FTC also enforces companies’ data security obligations. When advertising and collecting customers’ data online, companies and firms must ensure that they are doing so in strict compliance with all pertinent legal and regulatory requirements. Here, too, maintaining documentation of compliance is critical—as this documentation can serve as the foundation of an effective FTC defense strategy.

9. Make Sure You Have Adequate Documentation Before Publishing an Ad

Whether you need substantiation or you need to ensure that your company or firm has adequate data security protocols in place, it is important to make sure you have adequate documentation before publishing an ad. Even if your company or firm is in the process of establishing compliance, this will not be enough to withstand FTC scrutiny if an advertisement or data collection practice is misleading or presents risks for consumers.

10. Work Closely with Your FTC Compliance and Defense Counsel

Given the various challenges and risks involved with establishing, documenting, and proving FTC compliance, it is important for all advertisers to work closely with their FTC compliance and defense counsel. Not only can this type of proactive approach significantly reduce the risk of facing FTC scrutiny; but, in the event that the FTC launches an investigation, being able to rely on outside counsel can facilitate a swift and favorable resolution.

What If You Can’t Prove Compliance During an FTC Investigation?

So, those are our tips for establishing, documenting, and proving FTC compliance. But, what if you can’t prove compliance during an FTC investigation? What if you, your company, or your firm has made a mistake that presents a risk for FTC enforcement action and penalties?

In this scenario, a proactive approach is critical. When targeted by the FTC, entities and individuals must work with their defense counsel to assess their options and make informed decisions about how to move forward. If proving compliance is not a possibility, there are other options, and choosing between these options starts with gaining a clear and comprehensive understanding of the circumstances at hand.

FAQs: FTC Compliance and Investigation Defense

How Common Are FTC Investigations?

 

FTC investigations are becoming increasingly common. The FTC is devoting additional resources to enforcement, and it is paying particular attention to sponsored content, affiliate marketing, giveaways, and other advertising strategies that have gained traction in recent years.

What Are the Risks of Facing an FTC Investigation?

 

The risks of facing an FTC investigation can be substantial. Not only can the FTC impose injunctions, fines, and other penalties; but, when an investigation uncovers possible evidence of intentional consumer fraud or deception, the FTC can refer cases to the U.S. Department of Justice (DOJ) for criminal prosecution.

What Types of Advertising Violations Can Lead to FTC Penalties?

 

Numerous types of advertising violations can lead to FTC penalties. The FTC strictly enforces a broad range of prohibitions and requirements—from the general prohibitions against false and deceptive advertising to the requirements for affiliate disclosures and consumer data security.

What Is Involved in Proving Compliance to the FTC?

 

Proving compliance to the FTC can be an effective defense strategy in many cases. However, what it takes to prove compliance depends on the circumstances involved. When facing an FTC investigation, one of the first steps toward executing an effective defense strategy is to conduct an internal audit and determine what documentation the company or firm has available.

What Should I Do if I Have Questions or Concerns About FTC Compliance?

 

If you have questions or concerns about FTC compliance, you should contact us promptly. We represent companies, firms, and individuals in FTC compliance and defense matters nationwide. Our lawyers can help you make informed decisions; and, if you need to deal with the FTC, our lawyers can work with the agency on your behalf.


Contact Us for More Information

We have extensive experience representing clients in the areas of FTC compliance and defense. If you need more information, we invite you to get in touch. To schedule an appointment with a senior FTC compliance and defense attorney at Oberheiden P.C., call 888-680-1745 or tell us how we can reach you online today.

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