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 protection-related response stand out: (1) continuation of the agency’s scrutiny of false and deceptive product claims that seek to capitalize on the fears of consumers, (2) signs that the agency will work with businesses to accommodate the special pressures of the crisis, and (3) continuation but postponement of other, non-enforcement activities.

The FTC’s first consumer protection priority in response to the coronavirus pandemic has been to focus on especially egregious marketing scams that target particularly vulnerable populations.  The FTC has already issued a number of warning letters to sellers of supposed COVID-19 cures ranging from tea to edible silver and to voice over internet protocol (“VoIP”) service providers facilitating illegal coronavirus-related calls.  Fraud reports continue to rise rapidly: the FTC has received 7,800 coronavirus-related complaints this year, and almost half of these were filed in the last week.

In addition to enforcement, the FTC is also prioritizing working with businesses that provide goods and services necessary to respond to COVID-19.  While FTC Chairman Joe Simons has emphasized that the FTC “will not tolerate businesses seeking to take advantage of consumers’ concerns and fears” regarding coronavirus, he also emphasized that the Commission will be “flexible” in enforcing compliance requirements that may hinder the production of important goods and services.  Simons further noted that the FTC is “ready to assist” businesses with guidance on compliance and consumer protection issues during this uncertain time.

As enforcement and guidance take priority in these extraordinary circumstances, the FTC has de-emphasized some of its other activities.  The FTC has cancelled its participation in most conferences and public events.  And while non-enforcement proceedings such as rulemakings are still ongoing, a number of deadlines have been extended to allow more flexibility for the FTC and participants.  Notably, the Commission has extended the comment deadlines by sixty days for both the Funeral Rule and the Endorsement Guide proceedings, with comments now due in June rather than April.

Covington will continue to monitor the FTC’s response to this unprecedented situation and will provide further updates as it evolves.

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Photo of John Graubert John Graubert

John Graubert has more than 40 years of experience in a wide range of complex antitrust and consumer law matters. He has handled investigations and litigation in industries including pharmaceuticals, manufacturing, food and dietary supplements, fintech, online commerce, and a variety of other…

John Graubert has more than 40 years of experience in a wide range of complex antitrust and consumer law matters. He has handled investigations and litigation in industries including pharmaceuticals, manufacturing, food and dietary supplements, fintech, online commerce, and a variety of other consumer products and services. His antitrust work has addressed monopolization and exclusionary conduct, agreements, distribution issues, the Robinson-Patman Act and mergers, among other issues. In consumer protection cases, he has defended companies accused of deceptive or unfair conduct under the FTC Act, ROSCA, Made in USA rules, endorsement and testimonial guides and guides for environmental marketing, and in actions brought by State Attorneys General.

From 1998 to 2008, John served as Deputy General Counsel and Principal Deputy General Counsel (including several stints as Acting General Counsel) at the Federal Trade Commission. In that position, John managed all litigation, legal counsel, policy studies, and administrative functions within the Office of General Counsel. He also advised the Commission and agency staff on antitrust and consumer protection matters and administrative law. He was involved in dozens of litigated matters for the Commission, including FTC v. Swedish Match, et al. (D.D.C. 2000) and FTC v. Schering-Plough, et al. (11th Cir. 2005), and received the A. Leon Higginbotham Award and the Award for Distinguished Service.

John is the former co-chair of the firm’s Advertising and Consumer Protection Practice Group and an Adjunct Professor at the Georgetown University Law Center, most recently teaching Global Competition Law and Policy.

Photo of Laura Kim Laura Kim

Laura Kim has a proven track record of successfully resolving clients’ most important consumer protection matters before the FTC, State AGs, and the NAD. She is well-known for her insider knowledge of the FTC as well as her practical approach to accomplishing her…

Laura Kim has a proven track record of successfully resolving clients’ most important consumer protection matters before the FTC, State AGs, and the NAD. She is well-known for her insider knowledge of the FTC as well as her practical approach to accomplishing her clients’ objectives.

As chair of Covington’s Advertising & Consumer Protection Investigations practice group, Laura represents corporate and individual clients in investigations before the FTC and State Attorneys General. She also provides pragmatic compliance advice on a wide range of consumer protection issues, including substantiating claims involving generative artificial intelligence, environmental benefits, and “Made in USA.” She counsels brands on emerging issues involving influencers, consumer reviews, AI-generated content, and subscription autorenewals. Laura regularly represents both challengers and advertisers before the NAD, achieving favorable outcomes in matters involving artificial intelligence, influencers, and claim substantiation.

During her twelve-year tenure at the FTC, Laura served as Assistant Director in two divisions of the Bureau of Consumer Protection, Attorney Advisor to Chairman William E. Kovacic, and Chief of Staff to Bureau Director Jessica Rich. She oversaw major rulemakings—including the Green Guides and the Telemarketing Sales Rule—and supervised dozens of investigations and enforcement actions. As Assistant Director in the Division of Enforcement, Laura also supervised compliance monitoring and enforcement proceedings for companies under federal court or Commission order.

Photo of Ryan Miller Ryan Miller

Ryan Miller is an associate in the Washington, DC office. His practice focuses on both trademark matters, with an emphasis on counseling and litigation, and regulatory matters related to consumer protection.

Ryan helps technology and consumer brands to navigate the increasingly complex regulatory…

Ryan Miller is an associate in the Washington, DC office. His practice focuses on both trademark matters, with an emphasis on counseling and litigation, and regulatory matters related to consumer protection.

Ryan helps technology and consumer brands to navigate the increasingly complex regulatory landscape pertaining to trademark, advertising, and consumer protection issues. He provides counseling and compliance advice on a variety of advertising matters, working with clients to minimize regulatory and litigation risks while advancing their business and marketing goals.

Ryan has an active and diverse pro bono practice consisting of both litigation and regulatory matters.