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Acting FTC Chair Confirms Changing Civil Investigation Demand Policies

Acting FTC Chair Maureen Ohlhausen continues to reinforce her intent to ensure that the Commission will be focusing on consumer injury when the agency decides what cases to bring and what remedy to seek. “In every consumer protection case we bring, we must ensure that we seek and obtain for consumers relief that is tied to consumer injury,” said Ohlhausen recently.

“Having a lot of cases is one measure,” Ohlhausen told attendees at last month’s International Association of Privacy Professionals’ Global Privacy Summit. “But in a way, that’s like a doctor saying, ‘I performed a lot of operations so I’m successful, but I didn’t do a lot of preventative care.’”

Clearly, the agency intends to sharply focus upon its core enforcement mission, preventing fraud and addressing matters where consumers are actually injured or likely to be injured. By focusing on practices that are actually harming or likely to harm consumers, Ohlhausen believes that the FTC can best use its limited resources.

In doing so, Ohlhausen has also stated the FTC’s intent to reduce unnecessary regulatory burdens and provide additional transparency to businesses.

Ohlhausen has made it clear that the FTC will focus on consumer education and believes that everyone is better off if consumers know how to protect themselves. “If businesses who want to obey the rules know the rules and meet them, consumers are better off, business is better off, and we can use our limited resources on really bad actors,” she stated.

Perhaps most interesting from a reform perspective, are the evolving policy objectives pertaining to reviewing and streamlining the agency’s information requests that Ohlhausen believes impose significant compliance costs on legitimate companies.

Civil investigative demands are used to investigate possible “unfair or deceptive acts or practices.” While both subpoenas and CIDs may be used to obtain existing documents or verbal testimony, a CID may also require that the recipient file written reports or answers to questions.

No doubt a relief to digital marketers, Ohlhausen has also expressed a heightened sensitivity to whether information requests are more onerous than necessary.

For the better part of five months now, Ohlhausen’s theme has been a consistent one. The FTC’s focus upon concrete consumer harm and the hardships placed on legitimate businesses.

Contact an advertising compliance lawyer if you would like to discuss Federal Trade Commission regulatory policy, or if you are the subject of a local, state or federal investigation or enforcement action.

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ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005 | (212) 756-8777.

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Richard B. Newman

Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

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