ADventures in Law

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We recently had the great good fortune to host a live AD Nauseam <a href="https://www.bakerlaw.com/podcasts/ad-nauseam/" target="_blank" rel="noreferrer noopener">podcast</a> at the 2025 ANA Masters of Advertising Law <a href="https://www.ana.net/content/show/id/ms-baalaw-nov25-agenda" target="_blank" rel="noreferrer noopener">conference</a> with Federal Trade Commission (FTC) Commissioner Melissa Holyoak and National Advertising Division (NAD) Director Phyllis Marcus. We talked with them about FTC and NAD priorities for national advertisers and wanted to share the highlights with our blog followers. We will share the key points from our FTC discussion today and those from our NAD discussion soon. (The Commissioner appeared at the event virtually because of the continuing government shutdown.)

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Holyoak said Made in USA claims, advertising to kids and teens, and pricing disclosures were top areas of interest. She explained that this FTC would focus on enforcing existing laws and not trying to make new laws through rulemaking or overly aggressive enforcement. Holyoak emphasized the importance of avoiding derogatory labels such as junk fees, dark patterns and surveillance marketing because these make it sound like the FTC has prejudged issues. She also told the audience that there are many consumer and competitive benefits that derive from services such as subscription marketing. However, Holyoak stated that the FTC would crack down on deceptive conduct such as not disclosing all fees clearly or unfair practices like making it too difficult to cancel, citing as examples the FTC’s cases involving <a href="https://www.ftc.gov/news-events/news/press-releases/2024/09/ftc-takes-action-against-invitation-homes-deceiving-renters-charging-junk-fees-withholding-security" target="_blank" rel="noreferrer noopener">Invitation Homes</a> and <a href="https://www.ftc.gov/news-events/news/press-releases/2025/08/ftc-sues-la-fitness-making-it-difficult-consumers-cancel-gym-memberships" target="_blank" rel="noreferrer noopener">LA Fitness</a>.

Similarly, Holyoak explained the important value of free Internet services fueled by targeted advertising and said she is focused on making sure consumers understand how their data is being collected, shared and used and on enforcing the privacy statutes that the FTC has been charged with enforcing, including the Children’s Online Privacy Protection Act (COPPA) and the Fair Credit Reporting Act. Obtaining parental consent for collecting children’s data under COPPA is particularly of interest to the Commissioner, and she discussed cases like <a href="https://www.ftc.gov/news-events/news/press-releases/2025/09/ftc-takes-action-against-robot-toy-maker-allowing-collection-childrens-data-without-parental-consent" target="_blank" rel="noreferrer noopener">Apitor</a>, in which a robot toy maker allegedly collected geolocation data and provided it to China. She is focused on gearing up for enforcement of the <a href="https://www.congress.gov/crs-product/LSB11314#:~:text=The%20bill's%20criminal%20prohibition%20takes,notice%2Dand%2Dremoval%20process." target="_blank" rel="noreferrer noopener">Take It Down Act</a>, which goes into force next year.

Holyoak did not give us any updated information on when we might see the updated Green Guides. She did advise that marketers take the <a href="https://www.federalregister.gov/documents/2024/08/22/2024-18519/trade-regulation-rule-on-the-use-of-consumer-reviews-and-testimonials" target="_blank" rel="noreferrer noopener">Consumer Review Rule</a> seriously and continue to use disclosures of material connection unless it is obvious the endorser has a connection to a brand, such as when they may offer a personalized discount code to their followers. She advised marketers to review the <a href="https://www.ftc.gov/business-guidance/resources/consumer-reviews-testimonials-rule-questions-answers" target="_blank" rel="noreferrer noopener">Testimonial and Endorsement Guides and FAQs</a> for other helpful examples.

On AI, she said it was important to this administration and to this Commission not to take actions that could deter innovation in this critical emerging area. But the agency will continue to bring cases where there was deception. She said she is watching carefully not just AI products but also how marketers are using AI in marketing to make creative ads. She said it is critically important that the speed of AI not get ahead of matching the claims in the ad content to the science and other supporting substantiation. &nbsp;

And what AD Nauseam episode would be complete without personal trivia!!?? Holyoak told us her favorite ’80s movie is The Goonies and her favorite ’80s band is The Police. She was on ski patrol on the Utah slopes while in high school (and promised us the Utah slopes and all outdoor Utah destinations are spectacular). One bonus fact we didn<a>’</a>t cover at ANA is that a recent book she enjoyed is Project Hail Mary.

Insights from FTC Commissioner Holyoak at Recent ANA Conference