FTC Enforcement Defense
Protecting Client Interests in FTC Enforcement Actions
Just as FDA enforcement focuses on labels, labeling, safety and purity issues in food products and nutritional supplements, the Federal Trade Commission (FTC) enforces advertising and marketing standards to ensure that all claims are truthful, not misleading and adequately substantiated. The attorneys of Ullman, Shapiro & Ullman advise companies involved with any aspect of the food and supplements industries concerning the best ways to respond to FTC enforcement proceedings. We also assist companies with review of advertising and Internet web sites to help avoid FTC enforcement proceedings in the first instance.
There are significant differences between the FTC and FDA in their approaches to regulatory enforcement. Although FDA in recent years has lacked the resources to enforce its regulations through the use of judicial proceedings, it has used its ability to compel compliance primarily through requesting that companies engage in recalls of violative products and by issuing Warning Letters, which give companies an opportunity to address issues raised by the agency.
By contrast, the FTC approach typically relies on aggressive litigation tactics that challenge advertisers’ ability to substantiate misleading claims with scientifically acceptable evidence and that involve confiscation of the related profits and decrees with injunctions that bind companies and responsible individuals for 20 years. FTC enforcement actions frequently involve compelled process forcing companies to turn over documents and other evidence and can often lead to costly litigation or administrative hearings.
If the FTC suspects a violation involving product claims that appear in any advertising medium, ranging from retail displays to Web sites, its Bureau of Consumer Protection can choose to proceed against your company in a number of ways.
FTC Access Letters, Civil Investigation Demands and Federal Litigation
If you receive a so-called “access letter,” you will have the opportunity to produce documentation that substantiates your product claims and explains how your advertising and marketing materials are truthful and not misleading. Be prepared to defend implied claims, or product performance characteristics that are not explicitly stated.
If your company fails to respond to an access letter, the FTC will probably issue a Civil Investigative Demand, which amounts to an order that your company produce a great deal of data ranging from clinical test results to detailed financial information. The spirit of this review is likely to be significantly more adversarial than proceedings under an access letter.
There is no guarantee that the FTC will choose the access letter as its first step. It might proceed immediately to injunctive relief to freeze your company’s assets until it can calculate the amount of “consumer redress” necessary to remedy violations. Or the FTC can sue both your company and responsible individuals in federal court to establish liability and prove damages.
Experienced FTC Enforcement Defense Attorneys
The lawyers of Ullman, Shapiro & Ullman have extensive experience advising manufacturers, marketers and distributors nationwide about regulatory compliance and enforcement in the dietary and nutritional supplements industry.
Whether we defend you on the merits of an FTC complaint or negotiate a settlement depends on the specific facts of your case and your exposure to loss. Contact us in New York for the advice you need.