Pair of June Announcements Sets Stage at FTC9 Jul, 2013 By: Randal M. Shaheen, Amy Ralph Mudge, Venable L.L.P., Jeffrey D. Knowles
Since the departure of Federal Trade Commission (FTC) Chairman Jon Leibowitz and FTC Bureau of Consumer Protection (BCP) Director David Vladeck earlier this year, advertising attorneys have guessed about who would replace the two and what those changes would mean for advertisers and marketers. Most agreed the departure of Leibowitz and Vladeck would not mark a significant change in the FTC’s recent aggressive stance toward marketers.
In March, President Obama announced that current FTC Commissioner Edith Ramirez would become the new Chairwoman of the Commission. While Leibowitz made it clear during his tenure that he would rather litigate consumer protection cases and lose than give industry a free pass, it is unclear whether Ramirez – who is known as extremely methodical and a proponent of industry self regulation – would be quite as aggressive.
On June 17, Ramirez named Jessica Rich as the new director of the BCP. Rich was most recently associate director of the FTC’s Division of Financial Practices. Her FTC tenure also includes more than two years as deputy director of the BCP and 11 years in leadership roles at the Division of Privacy and Identity Protection. Rich has played a central role in many of the FTC’s actions addressing the intersection of advertising and privacy, including the Children’s Online Privacy Protection Act (COPPA) Rule, the FTC’s Behavioral Advertising initiative, and investigations into mobile applications targeting children.
Marketers can expect “more of the same” from a Rich-led BCP. After working closely with Vladeck for several years, it is likely Rich will maintain some of the zeal with which he pursued marketers. It should also be clear that privacy will remain a central focus of Rich during her time at the helm of BCP.
Because Ramirez was already an FTC commissioner, her appointment as chairwoman left the vacancy caused by Leibowitz’s departure from the five-seat commission. President Obama moved to fill that vacancy in late June when he nominated Terrell McSweeney to the Commission. During the past decade, McSweeney has served on a number of national Democratic political campaigns and held several senior policy positions at federal agencies. Most recently, she served as chief counsel for Competition Policy and Intergovernmental Relations in the Antitrust Division of the Department of Justice.
Based on her experience, it is a safe bet that McSweeney, if confirmed, will focus more of her attention on the FTC’s antitrust/competition mission rather than consumer protection. However, it would not be unheard of for a commissioner with an antitrust background to develop an interest in consumer protection matters.
After several months of guessing, the senior consumer protection positions at the FTC, pending McSweeney’s confirmation, appear filled. While direct response marketers can expect little change from BCP when it comes to advertising and marketing practices, there will likely be a greater focus on privacy and, perhaps, a more receptive ear when it comes to industry self regulation.
Jeffrey D. Knowles. Amy Ralph Mudge and Randall M. Shaheen are partners in Venable LLP’s Advertising, Marketing and New Media Group. They can be reached at (202) 344-4000.