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- Home
- Practices and Industries
- Regulatory and Public Policy
- Advertising and Consumer Protection
The firm’s active Advertising and Consumer Protection practice advises consumer-facing companies in a broad range of industries from engineering and manufacturing products and services to web-based businesses. We advise clients and successfully navigate government investigations on advertising, marketing and consumer product safety issues, including matters before the Federal Trade Commission (FTC), Food & Drug Administration, and State Attorneys General.
Our expert team includes attorneys with significant government experience, including a former FTC Commissioner, a former Deputy General Counsel of the FTC, and an Assistant Director and Chief of Staff in the FTC Bureau of Consumer Protection. In addition, clients in this area benefit from our close coordination with experts throughout the firm in food and drug law, financial services, branding issues, the FCC, trademark and intellectual property, and privacy and data security. As needed, we also coordinate with our Public Policy team for their expertise with legislators and regulators, as well as litigators with significant trial experience.
The firm has extensive experience in California Proposition 65 and other regulations addressing chemicals, including OSHA, FHSA, and TSCA. Our work includes counseling clients on legislative, regulatory, and product stewardship and packaging matters, as well as responding to “60-day” letters and the litigation and trial of Proposition 65 matters.
Co-lead counsel for POM Wonderful
Co-lead counsel for POM Wonderful in landmark advertising litigation with FTC concerning health claims for food products.
"Flushable Wipe" Litigation and Investigations
Counsel to Procter & Gamble in consumer litigation and agency investigations concerning "flushable wipe" advertising.
FTC Investigation into third-party advertising service
Represented a third-party advertising service in responding to an inquiry by the FTC into the company’s technology for selecting and delivering online advertising.
Consent Agreement Negotiations with the FTC
In recent years, negotiated multiple consent agreements with FTC in a variety of consumer-facing industries.
Resolved FTC Investigations Into Advertising Practices and Marketing Investigations
Successful public and non-public resolution of numerous other FTC advertising practices and marketing investigations, including numerous closures without commission action.
FDCA, FTC Act, and Lanham Act Compliance for life sciences companies
Advising distributors of prescription drugs and medical devices concerning compliance with the Food, Drug, and Cosmetic Act, FTC Act, and Lanham Act advertising standards.
Advance Ad Review
Advising consumer products companies on a variety of claims, such as "Made in USA," green claims, and "new."
Leading Food and Pharmaceutical Manufacturers on Advertising Requirements
Counseled leading human and animal food and pharmaceutical manufacturers on all facets of food and drug labeling, marketing and advertising requirements.
Litigation Challenging FCC's Rule on Telemarketing and Fax Advertising
Lead role in litigation challenging the FCC’s rules on telemarketing and fax advertising.
Manufacturers' Suggested Retail Pricing Matters
Representation of clients on connection with inquiries concerning manufacturers’ suggested retail pricing.
Advertising terms and guideline
Routinely draft ad-serving agreements, data licenses, and advertising terms and guidelines for website advertising and advertising delivered on mobile and social media platforms.
Children's Online Privacy Protection Act
Advised operators of child-directed websites and services on strategies for communicating their child-directed nature to third-party advertising partners in connection with the revised COPPA Rule, and agency inquiries.
Children’s Advertising Review Unit inquiry
Assisted the operator of a child-directed website in responding to an inquiry by the Children’s Advertising Review Unit (CARU) regarding its online behavioral advertising practices.
DAA Self-Regulatory Principles
Represented a third party in responding to an inquiry by the Online Interest-Based Advertising Accountability Program regarding compliance with the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising.
FTC reviews of advertising practices in the alcoholic beverage industry
Representing trade associations and individual companies in connection with the FTC’s periodic reviews of advertising practices in the alcoholic beverage industry.
Advertising-Based Content Licensing Arrangements Negotiations
Negotiated advertising-based content licensing arrangements, including in print, broadcast, and online media, and those associated with mobile-telephone content.
Advertising of “Functional Foods”
Advised on the advertising of “functional foods” -- foods and dietary supplements with particular health benefits and organic foods.
Advertising Transitions Negotiations Involving Paid-Programming
Negotiated advertising transitions involving paid-programming (or “infomercials”).
Commercial Arrangements for Online Advertising Revenue-Sharing Arrangements, Sponsored-Search and Graphical Advertising
Drafted and negotiated commercial arrangements for online advertising revenue-sharing arrangements, sponsored-search and graphical advertising involving the leading Internet portals and Internet content providers.
Consumer Products Manufacturers and Sellers on Advertising Matters
Counseled major consumer products manufacturers and sellers on commercial and regulatory advertising issues.
Content Providers on Broadcasting, Online, and Digital Media Advertising Trends
Advised major content providers, including sports leagues and television programmers and operators, on broadcasting, online and digital media advertising trends.
Copyright Advice on Advertising Issues
Provided copyright advice on advertising issues, including with respect to copyright risk-assessment and worked with clients to develop copyright compliance strategies.
Development and Guidance of Advertising Policies
Advised on advertising policies, including with respect to privacy laws, including the Children’s Online Privacy Protection Act, and developed advertising policies.
Development of Technical Substantiation Supporting Product Claims
Assist in developing technical substantiation to support product claims made in labeling, promotions and advertising, and in the defense of substantiation in the litigation context.
Food and Cosmetics Labeling Class Actions
Represented numerous food and cosmetics companies in responding to demand letters and class actions under the California Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law arising out of alleged false and misleading statements on labels and marketing materials.
Guidance on Advertising and Sponsorship Arrangements
Counseled leading health care information, product and disease-oriented websites on advertising and sponsorship arrangements.
Internet and Social Media Promotion Advice
Comprehensive review of internet and social media promotion for a leading multinational medical device company.
Internet-Site Operators on Commercial Strategies
Advised Internet-site operators on commercial strategies, including with respect to CPM-based revenue sharing arrangements.
New online advertising products
Represented a large social-media platform in connection with the development and implementation of new online advertising products.
Sherwin-Williams TCPA Class Action
Defended Sherwin-Williams in a putative class action alleging violations of the Telephone Consumer Protection Act in connection with a commercial text message program for paint contractors.
Political Advertising Issues for Multiple Clients
Advised on the full-range of political advertising issues, with clients ranging from candidates to political parties, to broadcast stations.
Privacy, Libel, and Related Liability Issues
Advised on privacy, libel and related liability issues relating to user-generated content.
Promotional Materials SOPs and Guidelines
Assist medical device manufacturer with drafting of standard operating procedures (SOPs) and guidelines for the creation, review, and use of promotional materials.
Structuring and Guidance on Multi-Faceted Sponsorship Arrangements
Helped structure and advise on multi-faceted sponsorship arrangements between pharmaceutical manufacturers and sports leagues.
Sweepstakes and Other Commercial Promotions Relating to Advertising
Provided advice on sweepstakes and other commercial promotions.
Advice on retailer pricing claims
Advising retailers on pricing claims and practices, including the use of the word “free,” “two-for-one” offers, and trial periods with negative cancellation options.
Advising Internet companies on advertising claims
Advising major Internet companies as to the substantiation required to defend advertising claims made about their products and services.
EU and national requirement compliance
Counseling clients on compliance with European Union and national requirements regarding the use of “green dot” labels related to product disposal, “CE” labels on prototype products, and use of national languages on product labels.
June 23, 2020, Covington Alert
As consumers rely more and more on the “independent” reviews of their peers in choosing products and services, advertisers need to remain vigilant that their role (if any) in disseminating such reviews is fairly disclosed, accurate and not misleading. The pitfalls in this area were recently illustrated by a pair of enforcement actions brought by the Federal ...
April 30, 2020, Covington Alert
Poison prevention has been one of several top priorities of the U.S. Consumer Product Safety Commission (“CPSC”) during the COVID-19 pandemic. President Trump’s recent speculation about the ingestion of disinfectants as a potential COVID-19 treatment prompted the agency to tweet an urgent safety warning the following day, and product manufacturers have issued ...
The FTC’s Response to the Coronavirus Pandemic: Consumer Protection Priorities and Initial Actions
April 7, 2020, Covington Alert
The Federal Trade Commission has traditionally responded forcefully to public health and economic crises, and it is doing so again in response to the coronavirus pandemic. The current crisis does present some additional complications, however, because of its impact on the operations of the agency itself. Three particular aspects of the FTC’s consumer ...
January 1, 2020, Financial Times
Lindsey Tonsager spoke with the Financial Times about the California Consumer Privacy Act (CCPA) and the different ways companies are trying to comply with the new law. Addressing some companies’ efforts to create self-serve portals to handle users’ privacy requests, Ms. Tonsager says, “This works fine but if you get a high spike of data access requests — right ...
December 4, 2019, Daily Journal
Lindsey Tonsager is quoted in Daily Journal regarding a new voter initiative designed to improve consumer privacy in California. Ms. Tonsager says, “The new ballot initiative has introduced some uncertainty into the conversation for businesses. There has been a real whiplash throughout the whole process of the CCPA. It was enacted back in 2018, and its already ...
October 21, 2019, Covington Alert
The Federal Trade Commission (“FTC”) has published a request for public comment on “ways to improve its existing regulations for negative option marketing.” 84 Fed. Register 52393 (October 2, 2019). The FTC acknowledges that negative option plans, such as prenotification negative option plans, continuity plans, and free trial and conversion plans, “can provide ...
October 2, 2019, Covington Alert
On September 26, 2019, staff from the Bureau of Consumer Protection in the Federal Trade Commission held a workshop on the agency’s experience with “Made in the USA” claims. The program consisted of a series of panel discussions between staff and representatives from the business and consumer advocacy communities. The workshop followed the Commission’s pledge ...
January 8, 2019, Covington Alert
Under the Resource Conservation and Recovery Act (“RCRA”), waste deemed “hazardous waste” is subject to onerous regulatory requirements, including: a 90-day storage limitation, shipment to a RCRA-permitted facility for disposal, and tracking from generation to disposal via a manifest system.
January 4, 2019, Covington Alert
The ongoing partial government shutdown has halted most operations of the Consumer Product Safety Commission (“CPSC”) and National Highway Traffic Safety Administration (“NHTSA”), the two federal safety regulators of consumer products and motor vehicles and motor vehicle equipment, respectively. With both major U.S. product safety regulators left without ...
Georgetown Tech Hub Hires Ex-FTC Commish, Covington Atty
December 7, 2018, Law360
Terrell McSweeny is quoted in Law360 regarding being named a distinguished fellow at Georgetown Law's Institute for Technology Law & Policy. Ms. McSweeny says, "I am thrilled to join the important discussion on technology law and policy at the Institute. As an alum, I am looking forward to contributing to the excellent work Georgetown Law School [is] doing ...
November 16, 2018, Covington Alert
As more companies recognize the value of enhanced sustainability reporting and publicize the positive environmental features of their products and services, they should also be attentive to greater public scrutiny of “green” claims.
September 14, 2018, Covington Alert
On August 16, 2018, the U.S. District Court for the Northern District of California dismissed a major portion of the Federal Trade Commission's ("FTC") lawsuit against DIRECTV, which involved broad allegations of deceptive advertising in promotional offers for its annual subscriptions.
Former FTC Commissioner McSweeny Joins Covington
September 10, 2018
WASHINGTON— Terrell McSweeny has joined Covington as a partner in the Antitrust and Competition Law and Data Privacy and Cybersecurity Practice Groups in Washington. Ms. McSweeny most recently served as a Commissioner at the Federal Trade Commission. Ms. McSweeny has held senior appointments in the FTC, Department of Justice, White House, and United States ...
Ex-FTC Commissioner McSweeny Joins Covington's DC Office
September 10, 2018, Law360
Terrell McSweeny is quoted in Law360 regarding her move to the firm. Ms. McSweeny says, “I am very excited to be joining a terrific firm to deal with the global challenges of antitrust, cybersecurity and consumer protection.”
January 24, 2018, Covington Alert
Digital advertising typically involves a vast network of publishers, advertisers and their agencies, advertising exchanges and networks, technology platforms, and measurement and data analytics providers. To help streamline the commercial dealings of all of these parties in this complex ecosystem, advertising industry self-regulatory groups have developed ...
January 8, 2018, Covington Advisory
In late December, the Federal Trade Commission (“FTC”) released a Staff Report titled Blurred Lines: An Exploration of Consumers’ Advertising Recognition in the Contexts of Search Engines and Native Advertising. This Report is the most recent sign of the FTC’s continuing interest in native advertising and effective online disclosures. This study builds upon the ...
Trump Picks Antitrust Lawyer to Head FTC, Leaving Uncertain Impact on Consumer Protection
November 2, 2017, Natural Products Insider
Laura Kim is quoted in a Natural Products Insider article regarding President Trump's pick to lead the FTC. According to Kim, "I think it’s hard to predict right now the specific agenda [Joseph Simons will] have on consumer protection issues."
Former FTC Official Rejoins Covington
October 12, 2017
WASHINGTON—Laura Kim has joined Covington’s Advertising and Consumer Law and Data Privacy and Cybersecurity practices in Washington. For more than a decade, Ms. Kim held a variety of roles in the Bureau of Consumer Protection at the Federal Trade Commission (FTC), including Assistant Director in two divisions, Chief of Staff to former Bureau Director Jessica ...
April 5, 2016, Practicing Law Institute
November 6, 2013, Covington E-Alert
January 9, 2013, Covington E-Alert
December 14, 2010, Covington E-Alert
January 6, 2009, Covington Advisory
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