Consumer Protection Handbook

Front Cover
American Bar Association, 2004 - 137 pages
Consumer protection law has special relevance to antitrust practitioners. The most influential single authority on consumer protection, the Federal Trade Commission, is also a prominent feature of the antitrust landscape. In recent years, there has been increasing cooperation and cross-pollination between the FTC's Competition and Consumer Protection Bureaus. In addition, the statutes that govern antitrust and consumer protection are intertwined -- not only the FTC but also the numerous state laws that combine unfair competition claims (often cognizable as antitrust violations) with unfair and deceptive acts and practices. Not surprisingly, then, complaints by aggrieved competitors often allege both antitrust and consumer protection causes of action. For legal practitioners who are nonspecialists in consumer protection law, such as the general practitioner and corporate counsel, Consumer Protection Handbook is a concise guide to the basic principles of consumer protection law. Especially with the advent of e-commerce, firms are potentially subject to more varied consumer protection laws, in more jurisdictions, than ever before. provides an overview of the avenues available to the potential complainant and the risks faced by a potential defendant, and serves as a starting point for further research. The emphasis is on the law as it pertains to false advertising, unfair and deceptive trade practices, and privacy. This book also provides a brief description of the enforcement powers and available remedies, both for public and private litigants, under the major consumer protection statutes. The next section discusses consumer protection enforcement under federal law, both by the government -- that is, the FTC -- and by private plaintiffs under the Lanham Act. The final chapter shifts to state law and provides a broad understanding of the types of practices proscribed in many of the states and the sources from which challenges may come. Practitioners can use this material as a springboard to further close examination of the relevant statutory and case law in the specific jurisdiction. Commission Act, which defines the unfair and deceptive practices regulated by the FTC; Section 43(a) of the Lanham Act, which creates a federal private cause of action for false and misleading advertising; and the various state consumer protection and unfair and deceptive practices statutes enforced by state attorneys general, by other agencies, and by private plaintiffs.
 

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Contents

OVERVIEW OF CONSUMER PROTECTION ISSUES
1
A DECEPTION AND CONSUMER FRAUD
3
2 Deception New FTC Definition
6
3 Consumer Fraud
7
B FALSE ADVERTISING
8
1 Express and Implied Claims
9
2 Omissions
11
3 Materiality
13
1 Elements of a Claim
54
c Commercial Advertising or Promotion
57
d Materiality
58
e Injury
59
3 Remedies
62
b Monetary Damages
63
1 Plaintiffs Lost Profits
64
2 Defendants Profits
65

5 Substantiation
14
a Substantiation under the FTC Act and State UDAP Statutes
15
6 Establishment Claims
16
7 Typicality
17
9 Price Advertising
19
b Price Comparisons
20
10 Product Origin
21
11 Comparative Advertising and Disparagement
22
12 Disclaimers and Disclosures
23
13 First Amendment Defenses
25
C UNFAIR PRACTICES
27
D PRIVACY
30
FEDERAL CONSUMER PROTECTION LAW AND ENFORCEMENT
37
1 The FTC Act
38
a Enforcement Procedures
39
2 Sting Operations
41
a ADMINISTRATIVE TRIALS
42
b ACTIONS IN FEDERAL DISTRICT COURT
45
4 Settlement
47
b Other Statutes Enforced by the FTC
48
c FTC Rules Position Papers and Guides
50
2 FTC Guides
52
STATE CONSUMER PROTECTION LAW AND ENFORCEMENT
67
A General Provisions of State Consumer Protection Laws
68
2 Intent Deception Reliance and Injury
71
3 Value of FTC Precedent
72
4 Other State Consumer Protection Precedent
74
6 California Business and Professions Code Section 17200
76
B STATE ATTORNEY GENERAL ENFORCEMENT
77
1 Enforcement Powers and Procedures
78
2 Remedies
80
b Monetary Relief
82
3 Other State Laws
83
C Private Actions under State Consumer Protection Laws
84
b Damages
85
6 Common Law Fraud
86
EXCERPTS OF IMPORTANT FEDERAL UNIFORM AND STATE CONSUMER PROTECTION STATUTES
89
2 Sections 34a 35a and 43a of the Lanham Act 15 USC 1116a 11170 1125a
98
3 Sections 1 to 7 of The Uniform Deceptive Trade Practices Act
100
Act
103
5 Sections 17200 to 17210 of the California Business and Professions Code
114
LIST OF STATE LITTLE FTC ACTS UDAP AND GENERAL CONSUMER PROTECTION STATUTES
123
TABLE OF CASES
127
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