In Loper Bright Enterprises v. Raimondo, No. 22-451 (U.S. June 28, 2024), the United States Supreme Court (Roberts, J.) held that the Administrative Procedure Act (APA) requires courts to independently determine whether an agency has acted within its authority. The Supreme Court’s decision marks a departure from the highly deferential relationship developed between courts and administrative agencies over the last forty years. By overruling the precedent set by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[1] (“Chevron”), the Loper Bright decision has cleared the way for the judiciary to interpret ambiguous statutes with more autonomy than we have seen in decades. Continue Reading Farewell, Chevron: Navigating Corporate Regulation Under Loper Bright
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FTC’S New “Disclosures 101” Publication And Video Is A Shout Out To Influencers
On November 5, 2019, the United States Federal Trade Commission (“FTC”) issued a guide entitled “Disclosures 101 for Social Media Influencers”[1] and a video “Do you endorse things on social media?” to alert influencers to the laws governing endorsement or recommendation of products or services and provide social media influencers with “tips on when and how to make good disclosures.”[2] The FTC’s written guide states that “[a]s an influencer, it’s your responsibility to make these disclosures, to be familiar with the Endorsement Guides, and to comply with laws against deceptive ads.”[3] The guide explains to influencers that disclosures must be made when an influencer has a “material connection,” that is “any financial, employment, personal, a family relationship with a brand” and that receiving “free or discounted products or other perks” requires a disclosure.[4] In addition, the FTC notes that “tags, likes, pins, and similar ways of showing you like a brand or product are endorsements.”[5] The FTC guide also instructs influencers that “[i]f posting from abroad, U.S. law applies if it’s reasonably foreseeable that the post will affect U.S. consumers. Foreign laws might also apply.”[6] The FTC notes that disclosures must be in simple and clear language that is placed “so it’s hard to miss” and should be placed with the endorsement itself. Disclosures that “appear only on an ABOUT ME or profile page, at the end of posts or videos, or anywhere that requires a person to click MORE” will not be sufficient.[7] The FTC gave the following guidance with regard to endorsement posts in photographs, video and live streaming:
Continue Reading FTC’S New “Disclosures 101” Publication And Video Is A Shout Out To Influencers