Companies Targeted By FTC Using Penalty Offense Authority Have Strong Defense, Attorney Says

15 May 2023

John Villafranco, partner at Kelly Drye & Warren LLP, says the US FTC’s ability to obtain monetary relief using the penalty offense mechanism is questionable both on statutory and Constitutional grounds. Marketers faced with civil penalties – for example, for alleged inadequately substantiated health claims – should stand their ground, he suggests in a recent interview.

Dietary supplement, personal care and other companies faced with potential civil penalties under the US Federal Trade Commission’s penalty offense authority have a strong defense on both statutory and Constitutional grounds, says John Villafranco, partner at Kelley Drye & Warren LLP.

“If a company were to litigate, I believe it could successfully assert a number of defenses,” Villafranco said in a...