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What DOJ's New Enforcement & Affirmative Litigation Branch Means for Modern Marketing The U.S. Department of Justice has replaced the long-running Consumer Protection Branch (CPB) with a new Enforcement & Affirmative Litigation Branch (E&AL) inside the Civil Division. The result will be a more centralized enforcement on online marketing practices and faster coordination with agencies [...]
What DOJ's New Enforcement & Affirmative Litigation Branch Means for Modern Marketing
The U.S. Department of Justice has replaced the long-running
Consumer Protection Branch (CPB) with a new Enforcement &
Affirmative Litigation Branch (E&AL) inside the Civil
Division.
The result will be a more centralized enforcement on online
marketing practices and faster coordination with agencies like the
Federal Trade Commission ("FTC"), the Federal Drug
Administration, ("FDA") and the Consumer Product Safety
Commission ("CPSC").
The New E&AL: Two Divisions:
The first division is the Enforcement Section which will handle
consumer protection statutes and referrals; this is the division
that will address claims coming out of the Federal Food, Drug, and
Cosmetic Act ("FDCA"), the Children's Online Privacy
Protection Act ("COPPA"), Restore Online Shoppers'
Confidence Act ("ROSCA"), the Consumer Product Safety Act
("CPSA"), and cases brought with/for the Federal Trade
Commission ("FTC") among others.
The second is the Affirmative Litigation Section ("ALS"), which will specifically target states, municipalities, and private entities that interfere with or obstruct federal policies. This allows DOJ to consolidate and centralize litigation efforts to maximize efficiency, speed, and impact, including seeking penalties and obtaining injunctions. Where the previous Consumer Protection Board focused on the protection of consumers' health, safety, and economic security, the E&AL's scope is broadened to include public health, safety, economic security, data privacy, and enforce federal policy priorities.
Where Will the Marketing Industry see Changes?
- First, there could be more federal actions on day to day marketing risks including those covered by the FTC such as false or unsubstantiated advertising claims, issues with endorsements, deceptive reviews, and dark patterns. E&AL will be able to coordinate with other agencies, streamlining the process to bring enforcement actions quickly.
- Second, platforms are on the table. Platform cases are included in the scope of the E&AL's authority. In their announcements, DOJ touted a $2 million civil penalty under Integrity, Notification, and Fairness in Online Retail Marketplace ("INFORM"), which applies to online marketplaces like Amazon, eBay, Etsy, and others that allow third-party sellers. Platforms, ginormous retailers, and the brands that distribute on them should expect scrutiny.
- Third, there is still a focus on kids' privacy and youth marketing. The E&AL includes COPPA, an area that the FTC investigates and DOJ litigates in federal court. Expect stricter enforcement and higher settlements – this applies to both brands and content creators.
- Look to some more proactive enforcement. The Affirmative Litigation Section's job is to find the parties that are going against or impeding federal policies. This gives DOJ another tool to use when state rules or private entities clash with federal consumer protection policies. We could see the DOJ working with the FTC for example, to fast track enforcement actions on product claims including health, AI, and "green" claims, influencers and consumer reviews, negative-options/auto-renewals and other online practices.
Best Practices Moving Forward: Continue to substantiate all advertising claims (implied and express), comply with all disclosure requirements, apply the strictest controls required by COPPA, shore up agreements with influencers (including provisions related to AI usage), and follow the FTC's guidance on negative options and other applicable regulations.
The full Press Release is found here: https://www.justice.gov/opa/pr/department-justice-creates-new-civil-division-enforcement-affirmative-litigation-branch
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