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Hunton Andrews Kurth LLP

Phyllis H. Marcus

Phyllis H. Marcus

Partner

Expertise

  • Advertising and Marketing Litigation
  • Advertising and Marketing Compliance and Regulatory Counseling
  • Advertising and Marketing
  • Advertising Compliance and Counseling

WSG Practice Industries

Activity

Profile

With 17 years of experience at the FTC, Phyllis brings a unique advertising and children’s privacy vantage point to our clients.

Phyllis heads the firm’s advertising counseling practice, and focuses on all aspects of advertising, from the initial development of a claim to its ultimate defense in the marketplace. Phyllis’s practice includes claim creation and substantiation, pre-acquisition due diligence, dissemination in traditional and digital media, and both offensive and defensive competitor challenges. She also counsels clients on the intricacies of compliance with the Children’s Online Privacy Protection Act (COPPA). Prior to joining the firm, Phyllis was the Federal Trade Commission’s Chief of Staff for advertising practices, and leader of the FTC’s children’s privacy enforcement program.

Phyllis is a sought-after speaker on advertising and children’s privacy at conferences throughout the country. She has been interviewed countless times by media outlets, including by Bloomberg Law, Law360, The New York Times, The Washington Post and NPR Marketplace. Phyllis also is a regular contributor to Hunton’s Retail Industry Blog, posting on developments relating to advertising initiatives.

Phyllis was a law clerk to Judge John C. Eldridge of the Maryland Court of Appeals.

Relevant Experience

Advertising Experience

Phyllis’s longstanding experience as an advertising attorney with the Federal Trade Commission uniquely positions her to assist Hunton’s retail and consumer products clients in crafting compliant advertising claims and campaigns. While at the FTC, Phyllis oversaw the agency’s advertising workload, led numerous investigations involving deceptive health and safety claims, product endorsements and disclosures, and handled congressional testimony regarding FTC advertising initiatives. She brings these skills and insights to bear in helping our clients, by:

  • Counseling on compliance with the FTC’s Made in USA Rule;
  • Substantiating health and efficacy claims;
  • Reviewing food, drug and cosmetic packaging and labeling;
  • Developing branded content, endorsements, testimonials, user-generated content and influencer campaigns;
  • Making “green” and “sustainability” claims;
  • Marketing to children;
  • Designing loyalty programs, sweepstakes, promotions and contests;
  • Creating warranties, guarantees and service contracts; and
  • Marketing regulated products to of-age consumers.

Phyllis also represents our clients before the FTC, state attorneys general and the National Advertising Division (NAD) and in private litigation throughout the country.

Privacy Experience

Phyllis is the foremost expert on children’s privacy in the United States, having literally “written the book” (or at least, the rules) on the subject. Phyllis led the FTC’s children’s online privacy program for seven years, bringing a host of COPPA penalty actions and leading the 2010–2012 overhaul of the agency’s COPPA Rule.

She is uniquely positioned to assist our clients with the complexities of federal children’s privacy laws. Practical as well as knowledgeable, Phyllis helps our clients design their apps, IoT devices and online services to be both user-friendly and compliant with the law.

Bar Admissions

  • District of Columbia

Education

BA, University of Pennsylvania, magna cum laude, 1990
Areas of Practice

Advertising and Marketing | Advertising and Marketing Compliance and Regulatory Counseling | Advertising and Marketing Litigation | Advertising Compliance and Counseling | Advertising Litigation | Antitrust and Competition | Antitrust and Consumer Protection | Competition and Consumer Protection | Consumer Products | Consumer Protection and Advertising Review | Cosmetics | Crisis Management | Food and Drug | Food and Drug: Advertising and Promotion | Global Privacy and Cybersecurity | Life Sciences Industry | Litigation | Privacy and Cybersecurity | Retail

Professional Career

Professional Associations

  • Vice Chair, ABA Section of Antitrust Law’s Privacy and Information Security Committee, 2016-2018
  • Member, Montgomery County Public Schools Superintendent’s Cybercivility Task Force, 2014

Professional Activities and Experience

  • Recognized by The Legal 500 United States in Cyber Law and Data Protection and Privacy, 2016
  • Official Commendation for Distinguished Service, awarded by the Chairwoman of the Federal Trade Commission, October 2015
  • Bureau Director’s Award for outstanding contributions to Bureau efficiency and unity, 2014
  • Bureau Director’s Award for outstanding contributions to children’s privacy, 2010

Articles

FTC Finalizes “Made in USA” Rule in Partisan Split
Hunton Andrews Kurth LLP, August 2021

At the Federal Trade Commission’s (FTC) July 1 meeting, it finalized a new “Made in USA” Rule that was almost two decades in the making. The FTC issued a notice of proposed rulemaking in June 2020 and received 700 comments from stakeholders...

Retailers Beware: “You Can’t Say Your Products are Made in the USA When [They Are] Made Elsewhere.”
Hunton Andrews Kurth LLP, April 2021

Gennex Media LLC, a customizable product online marketplace, and its sole officer and shareholder Akil Kurji, have agreed to an FTC consent decree resolving allegations the company falsely claimed its Brandnex novelty products were “Made in USA,” “USA MADE,” and “Manufactured Right Here in America!” when, in many instances, they were wholly imported from China...

Hunton Retail Law Resource: Analysis and Insight in Retail Law
Hunton Andrews Kurth LLP, November 2020

The Retail Industry team would like to provide you with an update on legal developments in the retail and consumer products industries as posted on the Hunton Retail Law Resource blog. If you wish to receive email alerts when new posts are published, please visit our blog and enter your email address in the subscribe field...

Additional Articles

  • FTC Issues Native Advertising Policy Statement and Guidance. ABA – What’s in Store (Section of Antitrust Law Consumer Protection)
  • Implementing the Children’s Online Privacy Protection Act: A Federal Trade Commission Report to Congress
  • Self-Regulation in the Alcohol Industry: A Report of the Federal Trade Commission
  • Virtual Worlds and Kids: Mapping the Risks: A Federal Trade Commission Report to Congress
  • 2019 Retail Industry Year in Review
  • 2020 Retail Industry Year in Review

Blogs

Blockchain Legal Resource
Hunton Andrews Kurth LLP 

Analysis and Insight in Blockchain Law

WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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