In her remarks at this year’s ANA Masters of Advertising Law Conference, Commissioner Melissa Holyoak of the Federal Trade Commission (FTC) emphasized three areas where the agency is focusing its consumer protection enforcement mandate: the Children’s Online Privacy Protection Rule (COPPA), Made in USA claims, and price transparency.
Holyoak didn’t comment on press reports that she will soon leave the agency to become U.S. attorney for the District of Utah, with White House staffer Ryan Baasch set to fill Holyoak’s spot.
Price Transparency and the FTC’s Unfair or Deceptive Fee Rule
Regarding price transparency and the FTC’s Unfair or Deceptive Fee Rule, Holyoak stressed that while the rule’s scope is limited to ticket sellers and short-term lodging providers, all companies and their pricing practices remain subject to the Section 5 enforcement.
Holyoak also stated that the FTC remains committed to enforcing the Restore Online Shoppers’ Confidence Act (ROSCA), noting the enormous number of consumers who are affected by autorenewal and subscription services practices, including those who are enrolled into a subscription without their knowledge, or others who find it difficult to cancel a subscription.
Asked about the FTC’s use of terminology like “dark patterns” and “surveillance” marketing and pricing, Holyoak said she believed the FTC should avoid using such “nefarious” terms and making predetermined judgments on any specific marketing practices. Rather, she said, the FTC will focus on the cost/benefit analysis to consumers and on the facts of the case.
The FTC’s Approach to Data Privacy and Consumer Harm
Holyoak acknowledged that targeted ads can benefit consumers but said that there is risk when companies collect and use consumer data in certain ways. Noting a lack of a comprehensive federal privacy law, the commissioner said the FTC will look to Section 5 and narrower statutes like COPPA to protect consumer data.
One distinction between the Biden and Trump FTCs that Holyoak highlighted is that during President Trump’s second term, the agency will look at how Americans are harmed by data collected about their consumer behaviors. She said the FTC under President Biden, in contrast, penalized companies for merely collecting, categorizing, and retaining data. The FTC’s job, Holyoak said, is to “protect consumers, not data.”
