Phyllis H. Marcus

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In 1973, Congress amended the FTC Act by adding §13(b), giving the Federal Trade Commission equitable powers to remediate any violation of any law under its purview.  Using that power, the FTC has sought equitable monetary relief, including restitution and disgorgement. The lower courts routinely authorized such relief and Congress seemingly acknowledged the FTC’s power when it reauthorized the FTC Act.…
Continue Reading In a Rebuke to Longstanding FTC Approach, Supreme Court Rules FTC Cannot Rely on “Injunction” Provision to Obtain Equitable Monetary Relief

Gennex Media LLC, a customizable product online marketplace, and its sole officer and shareholder Akil Kurji, have agreed to an FTC consent decree resolving allegations the company falsely claimed its Brandnex novelty products were “Made in USA,” “USA MADE,” and “Manufactured Right Here in America!” when, in many instances, they were wholly imported from China.…
Continue Reading Retailers Beware: “You can’t say your products are made in the USA when [they are] made elsewhere.”

The FTC settled charges with mobile advertising company Tapjoy, Inc., on allegations that the company failed to provide promised rewards in exchange for completed activities such as the payment of money, disclosure of sometimes-sensitive personal information, or registration for “free trial” marketing offers.…
Continue Reading FTC Pursues Advertising Network that Failed to Deliver In-Game Rewards in Exchange for Payment or Personal Information

The FTC approved amendments to its Energy Labeling Rule, adding portable air conditioners to the class of appliances requiring yellow EnergyGuide labels effective October 1, 2022, and updating energy efficiency descriptors for central air conditioning units.…
Continue Reading FTC Approves Amendments to EnergyGuide Labels, Draws Strong Commissioner Statements

The FTC has obtained a $1.2 million settlement in a follow-on action against glue manufacturer Chemence, the largest judgment for a Made in USA the agency has ever imposed. According to the FTC, Chemence violated a 2016 order involving deceptively labeled “Proudly Made in USA” glue products whose inputs were imported.…
Continue Reading Glue Manufacturers Who Defied 2016 FTC Settlement Subject to Historic “Made In USA” Judgment

On Friday, November 6, 2020, the FTC finalized its settlement with Sunday Riley Skincare, a cult-favorite skincare brand known for its high-end products. The action comes after the agency’s initial announcement in October 2019 that employees of the brand, under direction of CEO, Sunday Riley, posted thousands of fake reviews of the brand’s products online over the course of almost two years.…
Continue Reading Divided FTC Finalizes “No-Fault, No-Money Settlement” Agreement with Skincare Brand, Sunday Riley

On October 1, 2020, New York state implemented a ban on businesses charging a “pink tax” for their products or services. The new law prohibits any individual or entity, including retailers, suppliers, manufacturers or distributors, from charging a different price for two “substantially similar” goods or services based on the gender for whom the goods or services are marketed. …
Continue Reading New York Implements “Pink Tax” Ban

The National Advertising Division has recommended that Factor Nutrition Labs, LLC, discontinue its claim that its Focus Factor brain health supplement is “America’s #1 Clinically Studied and Patented Brain Health Formula.” NAD’s decision follows a challenge by Quincy BioScience, Inc., the maker of Prevagen brain health dietary supplement.…
Continue Reading Making an Unsubstantiated Brain Health Claim? Think Again.