Document Type

Article

Publication Date

Spring 2024

Abstract

In 1971, the Federal Trade Commission (“FTC”) and the Food and Drug Administration (“FDA”) agreed to prevent injury and deception to the consumer in advertising, detailing their respective roles in a Memorandum of Understanding (“MOU”).1 The MOU proscribes that the FTC regulates truth in advertising relating to foods, drugs, devices and cosmetics while the FDA controls labeling and the misbranding of foods, drugs, devices, and cosmetics shipped in interstate commerce.2 The MOU has been amended and an addendum added since 1971, but the material provisions have remained consistent for over a half-century.3

Importantly, the FDA and the FTC have varying goals and differing structures. The FDA is part of the Executive Branch and is primarily responsible for the protection of public health via the regulation of certain health-related products, so that those products can achieve a certain efficacy or social “value.”4 On the other hand, the FTC is an independent agency that interacts with all three branches of the federal government, ensuring the integrity of the market process rather than focusing on a product’s specific social “value”.5 Typically, the FDA ensures compliance on the front end by approving consumer disclosures in advance while the FTC provides back end relief by regulating specific claims that have already been advertised.6

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