On August 4, 2020, the Federal Trade Commission ("FTC") filed suit against three online merchandisers for misrepresenting to consumers that they could quickly ship personal protective equipment ("PPE") featured for sale on their websites. The lawsuits are a reminder of how important truthful PPE marketing is in order to gain consumer trust and avoid costly FTC investigations.
How can businesses comply with PPE marketing regulations?
The FTC Investigations
The lawsuits allege that the companies violated both the Mail, Internet, or Telephone Order Merchandise Rule ("MITOR") and Section 5(a) of the FTC Act. MITOR requires that businesses that solicit consumers to purchase merchandise through the Internet provide a reasonable expectation that they can ship the merchandise within the advertised time frame, or, if no time frame is specified, within thirty (30) days. Additionally, businesses that cannot ship within the promised time, must obtain consumers consent to a delay in shipping or refund payments for unshipped merchandise. Section 5(a) of the FTC Act prohibits "unfair or deceptive acts or practices in or affecting commerce." Each complaint provides detailed evidence of how these companies advertised that they had PPE "in stock" that was "guaranteed to ship today" or "within 24-48 hours." The complaints allege that shipping was often delayed weeks or months and that consumers were never offered notice that shipping was delayed or given the option to receive a refund, as is required by MITOR. The FTC initiates investigations when it believes that consumers have suffered substantial injury due to violations of FTC regulations. The FTC has been especially diligent in protecting consumers against deceptive PPE product marketing during the ongoing COVID-19 pandemic.
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These recent FTC lawsuits serve as a warning to businesses that PPE marketing must comply with applicable law and regulation. Previously we have blogged about how the U.S. Food and Drug Administration ("FDA") and the FTC have issued joint warning letters to businesses that may have violated federal law in their PPE advertising. Consulting with attorneys that provide PPE marketing compliance guidance can go a long way towards preventing an FTC investigation and the reputational harm that goes with it.
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