{"id":3722,"date":"2022-11-11T08:00:00","date_gmt":"2022-11-11T13:00:00","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=3722"},"modified":"2024-09-27T18:57:21","modified_gmt":"2024-09-27T18:57:21","slug":"the-ftc-sticks-their-foot-in-the-first-amendment","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/the-ftc-sticks-their-foot-in-the-first-amendment\/","title":{"rendered":"The FTC Sticks Their Foot in the First Amendment"},"content":{"rendered":"\n
\"An<\/figure>\n\n\n\n

By: Kendall Smith<\/a>, Vol. 21 Staff Writer<\/p>\n\n\n\n

My Neck, My Back, and My Knee?<\/strong><\/p>\n\n\n\n

In May 2022, the U.S. Federal Trade Commission (FTC) filed a lawsuit<\/a> against a California footwear company, Gravity Defyer Medical Technology Corporation, and its owner, Alexander Elnekaveh, for false and deceptive advertising. Gravity Defyer<\/a> markets and sells \u201cpain defying\u201d footwear made with \u201chybrid VeroShock technology\u201d that claims to relieve knee, back, ankle or foot pain associated with certain medical conditions. In response to the lawsuit, Gravity Defyer invoked their First Amendment right to free speech and criticized the government agency for having a history of overreaching.<\/p>\n\n\n\n

Walk, Before you Run<\/strong><\/p>\n\n\n\n

            The Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission<\/em><\/a> made it clear that commercial speech is a less-protected category of speech. The Court defined commercial speech as \u201cexpression related solely to the economic interest of the speaker and its audience.\u201d While commercial speech is a less protected category, this does not mean it is not protected at all. Under the First Amendment commercial speech doctrine, the U.S. government may not prohibit advertising unless it is provably, and thus, inherently misleading. If speech is only potentially misleading, the remedy applied is more disclosure, not prohibition.<\/p>\n\n\n\n

The FTC is an independent agency of the U.S. Government created by and tasked with enforcing the Fair Trade Commission Act<\/a>. Congress passed the act to protect consumers against methods of deception in advertisement and compelling businesses to be upfront and truthful about items being sold online. The FTC alleges Gravity Defyer violated several sections of the Act which prohibit:<\/p>\n\n\n\n