On Wednesday, July 28, 2021, the U.S. House Committee on Energy and Commerce’s Subcommittee on Consumer Protection held a hearing titled “Transforming the FTC [Federal Trade Commission]: Legislation to Modernize Consumer Protection.” The hearing considered 16 consumer protection bills and featured testimony from two panels. The first panel included the FTC’s five commissioners. The second panel included a law professor, a representative from a consumer protection organization, and a representative from the App Association (tech application developers trade group).

While the Committee Members and the FTC Commissioners did not address direct-to-consumer issues in this hearing, the Legal & Advocacy team, in coordination with Cozen O’Connor Public Strategies, used it as an opportunity to meet with Congresswoman Robin Kelly’s staff on direct-to-consumer (DTC) concerns and offer the following question for the record (QFR) that could be submitted for the hearing:  

“In recent years, some companies have marketed prescription medical products directly to consumers through television, social media, and internet advertising. These products are often prescribed with less direct evaluation or supervision by a healthcare provider, which has led to reports of lower quality and adverse events. For example, a mail-order orthodontics company that did not require typical in-person orthodontic visits faces allegations that they violated prescription labeling requirements established under the Federal Food, Drug and Cosmetic Act and endangered consumers by not taking sufficient diagnostic steps prior to selling their orthodontic aligners. As you are aware, this corner cutting puts patients at risk for long-term dental problems. Can any of the witnesses please discuss (1) whether the FTC is actively monitoring these safety issues posed by direct-to-consumer medical products and (2) how the FTC is working to prioritize federal consumer protections within this space so that bad actors cannot not hide behind other laws (e.g., antitrust laws) to shirk their responsibilities to protect consumers?”

Congresswoman Kelly submitted the QFR to the FTC Commissioners as a follow-up to last month’s hearing.  Any responses to the question from FTC Commissioners may take some time and we will share their answers when they are received. We are grateful to Congresswoman Kelly for submitting this important question for the record and her leadership on the Energy & Commerce Committee and Congressional Black Caucus.  If you would like to send a note of appreciation to Congresswoman Kelly for raising these important issues, you can e-mail it to her Legislative Director, Matt.McMurray@mail.house.gov.