FTC Regulation Tracker—May

Advertising Law

The two big consumer protection regulation stories out of the FTC this month are Negative Options and AI.

The FTC’s Negative Option rule would, among other things, require sellers to make it as easy for consumers to cancel their enrollment as it was for them to sign up and allow the FTC to obtain civil penalties for rule violations. Manatt has unpacked the rule in more detail in the article Sellers Beware: FTC Proposes Changes to Automatic Renewal Laws and the downloadable webinar Automatic Renewal Laws: Everything to Know About the Surge in Litigation and Regulatory Enforcement. The FTC published its proposed Negative Option rulemaking on April 24, giving any interested commenters until June 23 to provide input.

The second item out of the FTC rulemaking gate is a request for comment on Business Practices for Cloud Computing Providers. The Commission has signaled a particular interest in the potential anticompetitive effects of cloud computing with respect to the health care, finance, transportation, eCommerce and defense industries. While the comment requests are broad, one prominent line of inquiry is the effect of artificial intelligence on anticompetitive behavior. To that end, the Commission has requested comment on:

(1) The extent to which AI products and services are dependent on the cloud provider they are built on, and

(2) How the use of AI will affect competition among cloud providers now and in the future.

The FTC extended the cloud computing comment period to June 21, just a week after issuing a Joint Statement with three other agencies on the need to regulate AI. Manatt provides key takeaways from the new regulatory approach to AI in the article AI Has Captured the Attention of the U.S. Public—and Federal Enforcers. We expect these comments will likely result in FTC rulemaking on AI-related issues in the near to medium term. Our updated tracker is below.

FTC Proposal Proposal Type Manatt Insights Comments Due
Negative Option Rule Notice of Proposed Rulemaking Sellers Beware: FTC Proposes Changes to Automatic Renewal Laws
 
Automatic Renewal Laws: Everything to Know About the Surge in Litigation and Regulatory Enforcement
June 23, 2023
Business Practices of Cloud Computing Providers Request for Information AI Has Captured the Attention of the U.S. Public—and Federal Enforcers June 21, 2023
Franchisor Business Practices   Request for Information   June 8, 2023
Tenant Screening Request for Information   May 30, 2023
Guides for the Use of Environmental Marketing Claims (“Green Guides”) Proposed Guidance The FTC Takes on ESG: Proposed Updates to the Green Guides Deadline Passed 
Non-Compete Rule Notice of Proposed Rulemaking FTC Proposes Ban on Noncompetes Deadline Passed 
Energy Labeling Rule Advance Notice of Proposed Rulemaking Understanding the Changing Regulatory Landscape Under an Activist Federal Trade Commission Deadline Passed
Ophthalmic Practice Rule Notice of Proposed Rulemaking FTC Sends Warning Letters to Eyeglass Prescribers Deadline Passed
Use of Reviews and Endorsements Advance Notice of Proposed Rulemaking A Closer Look at the Proposed Amendments to the FTC Endorsement Guides Deadline Passed
Commercial Surveillance and Data Security Advance Notice of Proposed Rulemaking Protecting Consumer Health Data: FTC and State Actions to Close the Privacy Gap Deadline Passed
Guides Concerning the Use of Endorsements and Testimonials in Advertising Proposed Guidance FTC Proposes Major Updates to the Endorsement Guides
 
A Closer Look at the Proposed Amendments to the FTC Endorsement Guides: Key Takeaways for Advertisers
Deadline Passed
Telemarketing Sales Rule Revisions: B2B & Tech Support Calls, Negative Options Advance Notice of Proposed Rulemaking  FTC Proposes Expansion of TSR That May Impact SMB Lending Deadline Passed
Telemarketing Sales Rule: Recordkeeping   Notice of Proposed Rulemaking  FTC Proposes Expansion of TSR That May Impact SMB Lending   Deadline Passed
Earnings Claims Advance Notice of Proposed Rulemaking 2022 FTC and NAD Roundup Deadline Passed
.com Disclosures Request for Information 2022 FTC and NAD Roundup Deadline Passed
Safeguarding Customer Financial Information     Supplemental Notice of Proposed Rulemaking  FTC Proposes Changes for Safeguards, Privacy Rule   Deadline Passed
Risk Based Pricing   Notice of Proposed Rulemaking    Deadline Passed
Government and Business Impersonation   Notice of Proposed Rulemaking    Deadline Passed
Junk Fees Advance Notice of Proposed Rulemaking   Deadline Passed
Business Opportunity Rule Advance Notice of Proposed Rulemaking   Deadline Passed
Funeral Industry Practices Advance Notice of Proposed Rulemaking   Deadline Passed
Motor Vehicle Dealers   Notice of Proposed Rulemaking    Deadline Passed
Power Output Claims
for Amplifiers Utilized in Home
Entertainment Products
Notice of Proposed Rulemaking   Deadline Passed
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