FTC and NAD Enforcement Priorities & ANA 2025

The Federal Trade Commission (FTC) and National Advertising Division (NAD) of BBB National Programs laid out their enforcement priorities during the 2025 ANA Masters of Advertising Law Conference, at which Crowell & Moring attorneys spoke on and attended various panels.

During a panel entitled “Leadership Changes at the FTC and NAD - What This Might Mean for Advertising Priorities and Your Clients,” FTC Commissioner Holyoak and NAD Vice President Phyllis Marcus discussed what they anticipate to be consumer protection and advertising priorities.

Commissioner Holyoak laid out three priorities:

1. 1. 1. Protecting children
      2. Made in USA claims
      3. Price transparency

When discussing protecting children, Commissioner Holyoak noted the Children’s Online Privacy Protection Act/Rule (“COPPA”), 16 C.F.R. § 312, which imposes certain requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age.

When discussing Made in USA claims, Commissioner Holyoak noted the FTC’s Made in USA Labeling Rule, 16 C.F.R. § 323, which requires that a product advertised as Made in USA (without qualifiers) be “all or virtually all” made in the U.S., meaning that the final assembly, all significant processing, and all sourced components must be from the U.S. She also noted that Made in USA and price transparency enforcement also serve the FTC’s competition mandate.

During the discussion, Commissioner Holyoak also discussed:

• Subscriptions, Negative Options, the Restore Online Shoppers' Confidence Act (“ROSCA”), Dark Patterns, and Click-to-Cancel
  • • The FTC requires disclosure of material terms, express consent, and a simple mechanism to cancel.
    • For unfairness claims, it is a cost-benefit analysis, as there are benefits and harms to consumers from subscriptions.
• The FTC Rule on Unfair or Deceptive Fees (“Junk Fees Rule”)
  • • Though the rule only applies to short-term lodging and ticketing, Section 5 of the FTC Act, preventing unfair or deceptive acts or practices, still applies to all industries, and the FTC will consider unfair or deceptive fees in other industries.
• “Surveillance Marketing” (Targeted Advertising)
  • • Behaviorally targeted advertising is very data intensive, and incentivizes data collection and retention, but provides benefits to consumers like free products/internet.
    • There are no comprehensive federal privacy laws that address these issues (though some states have them).
    • The focus is on enforcing narrower statutes (e.g., COPPA, ROSCA).
    • These cases are very dependent on the facts (what data is collected, from whom, how it is being used).
    • Because the FTC statutes do not define sensitive data, the FTC looks to the unfairness standard (a cost-benefit analysis).
• Children/Teen Advertising
  • • COPPA
    • Protecting Americans’ Data from Foreign Adversaries Act (PADFA), which prohibits data brokers from transferring personally identifiable sensitive data of United States individuals to foreign adversaries.
    • The Take It Down Act, which requires online platforms to have a “notice-and-removal” process for taking down non-consensual intimate imagery, whether authentic or AI-generated, within 48 hours of a victim’s request.
• Artificial Intelligence (AI)
  • • The FTC wants to foster innovation, including accelerating AI innovation, and not hinder it, but will still bring enforcement actions where AI is involved.
    • For example, the FTC launched a 6(b) study on chatbots, focusing on alarming chatbot interactions with children and teens (illegal activity, suicide, and romantic relationships)
• Influencers, Consumer Reviews, and Endorsements
  • • The focus is whether a significant minority of consumers would be deceived.
    • If it is very obvious that it is an endorsement, then disclosure might not be required. Examples: an influencer’s own brand, a discount code, or podcasters reading a commercial for a product. However, it is a case-by-case review and depends on the understanding of consumers.

Notably, when preparing for the session, the panelists asked Commissioner Holyoak about updating the Green Guides, but she replied with a non-answer.

When discussing the NAD, Phyllis Marcus noted that the NAD mostly takes cases as they come (only about 20-25% of NAD’s cases are NAD-initiated cases). However, she noted areas where they are seeing a lot of NAD cases:

1. 1. 1. Made in USA
      2. Pricing cases
      3. Pharmaceutical cases
      4. Business-to-business (B2B) cases

During the discussion, Phyllis Marcus also discussed:

• Enforcement
  • • Though the NAD does not itself have enforcement power, it can refer cases to the FTC, FDA, EPA, SEC, and State Attorneys General.
    • The NAD also has formal arrangements with digital platforms for when the advertisement appears on them (e.g., social media companies).
• Protecting children, teens, and cosmetics
  • • The NAD recently brought its first joint case with the Children’s Advertising Review Unit (CARU).
• AI
  • • The NAD added an attorney whose focus is on AI.
    • There have been NAD cases about exaggerating the capabilities of AI features, but there are now starting to be cases on AI as a key feature that enhances an existing product, focusing on marketing to vulnerable populations and claims that AI is helping to keep consumers safer when purchasing.
• Influencers
  • • BBB National Programs is launching the Institute for Responsible Influence (IRI), including a certification and training program, this spring.
• Green Claims
• The Substantiation Standard
  • • The NAD will continue to look to the Pfizer factors, which includes the type of evidence experts in the field would require, even if the pending Xlear lawsuit against the FTC challenging the FTC substantiation standard is successful.

At the conference, Jason Stiehl and Preetha Chakrabarti led a panel entitled, “The Dance Between Legal and Marketing – An In-House Perspective,” discussing what marketing and legal can do to best prepare for the inevitable demand letter, including consumer surveys, regulatory updates, social media agreements, influencers, and overall risk assessment.

Dave Ervin also led a panel entitled, “Sponsorship Agreements in College & Professional Sports: Current Trends and Negotiation Tips for Sponsors,” which discussed helping ensure the marketing team gets the rights, benefits, and assets they need while limiting risks to the brand’s investment and which highlighted current trends and negotiation strategies for brands.

The conference also featured a variety of different panels, including on AI, Made in USA claims, Green claims, privacy, the Telephone Consumer Protection Act (“TCPA”), state enforcement, pricing, sweepstakes, subscriptions, loyalty programs, health claims, reviews and endorsements, and litigation and regulatory trends, among others. Crowell & Moring attorneys divided and conquered attendance at these sessions, for which they already have substantial knowledge and expertise, and are happy to advise or provide a recap on these topics and sessions.

With regulatory priorities rapidly evolving around children’s advertising and privacy, Made in USA claims, deceptive pricing, and pharmaceuticals, it is critical for clients to continuously assess advertising practices and compliance strategies to stay ahead of enforcement trends. Crowell & Moring’s team stands ready to help navigate these changing priorities and invites you to reach out for tailored guidance or a thorough overview of these topics.