Phyllis H. Marcus

A leader in the advertising bar with decades of experience both working at and practicing before the Federal Trade Commission (FTC), Phyllis brings a unique advertising and children’s privacy vantage point to our clients. Recognized as a Leader in Advertising: Transactional & Regulatory by Chambers USA (2021-2023) and a Media and Advertising Law Trailblazer by The National Law Journal (2023), Phyllis leads the firm’s advertising compliance and counseling team and focuses her practice on understanding and meeting our clients’ advertising needs, from the initial development of a claim to its ultimate defense in the marketplace.

She counsels global retail and consumer products brands on advertising and marketing law, guiding clients through the life cycle of advertising campaigns. Phyllis advises on claim substantiation and creation, pre-acquisition due diligence, dissemination in digital and traditional media, protection, defense, and more. She has represented clients in FTC and state attorney general investigations and counseled on competitor challenges. Clients have told Chambers USA (2023) that Phyllis “provide[s] sophisticated advice from a practical and commercially sensitive angle" and noted that conversations with her “feel like a short cut to finding solutions” as she helps to “isolate issues and focus on the pieces [of a matter] that directly impact results.”

With her extensive knowledge of children’s privacy law in the US, having led the FTC’s children’s online privacy program for years, Phyllis also counsels clients on the intricacies of compliance with the Children’s Online Privacy Protection Act (COPPA), state children’s privacy laws, and state and global age-appropriate design codes. She literally “wrote the book” (or at least, the rules) on the subject: Phyllis led the 2013 overhaul of the FTC’s COPPA Rule.

Phyllis is a frequent author and sought-after speaker on advertising and children’s privacy issues, including their intersection with other areas of law, such as antitrust, consumer consent and protection, the internet and social media, false product claims, and the metaverse and AI. She has spoken at conferences across the country, and been interviewed numerous times by media outlets, including Bloomberg Law, Law360, and MLex. Phyllis is the editor of Hunton Andrews Kurth’s quarterly “Hot Topics for Retail GCs” memo and a regular contributor to our Retail Industry Blog, posting on developments relating to advertising initiatives. In the past, Phyllis served as Co-Chair of the Privacy and Information Security Committee of the Antitrust Law Section of the American Bar Association and as a member of the Research Advisory Board on the By/With/For Youth: Inspiring Next Gen Public Media Audiences initiative of the Joan Ganz Cooney Center at Sesame Workshop.

Prior to joining the firm, Phyllis was the FTC’s Chief of Staff for Advertising Practices and leader of the FTC’s children’s privacy enforcement program. While at the FTC, Phyllis oversaw the agency’s advertising workload; led investigations into deceptive health and safety claims, product endorsements, and disclosures; and handled congressional testimony regarding FTC advertising initiatives. After law school, Phyllis clerked for the Honorable John C. Eldridge of the Supreme Court of Maryland.

Advertising Experience

Phyllis’s longstanding practice as an advertising attorney with the FTC informs her skill and perspective in advising retail and consumer products clients on crafting compliant advertising claims and campaigns. Her wide range of experience includes:

• Environmental and sustainability claims, including ensuring compliance with the FTC’s Green Guides
• Use of generative AI in retail campaigns
• Made in USA claim compliance
• Counseling on digital ad campaigns, including child-directed advertising
• Influencer and branded campaigns
• Online reviews and testimonials
• Sales pricing
• Substantiating health and efficacy claims
• Reviewing food, drug, and cosmetic packaging and labeling
• Alcohol sales and marketing

Children’s Privacy Experience

Phyllis is uniquely positioned to assist our clients with the complexities of federal children’s privacy laws. She helps our streaming, media, consumers products, and video game clients design their apps, IoT devices, ad campaigns, and online services to be both user-friendly and compliant with the law. Her breadth of knowledge includes:

• Privacy protective and child-appropriate branded content campaigns
• Ad tech
• Smart TVs
• Streaming networks, cable providers, and content creators
• Social Media
• Online gaming and metaverse experiences
• Age assurance and parental consent

• Recommended for Cyber Law (Including Data Privacy and Data Protection) (2016, 2018-2021, 2023-2024) and Cyber Crimes (2016), Legal 500 United States
• Recognized as a Leader in Advertising: Transactional & Regulatory, USA-Nationwide (2021-2024), Chambers USA
• Named one of the Top 10 Advertising: Transactional & Regulatory Lawyers in USA, Business Today, 2023
• Named a Media and Advertising Law Trailblazer (2023), The National Law Journal
• Recognized as a Best Lawyer for Advertising Law (2023-2024), The Best Lawyers in America©
• Received an Official Commendation for Distinguished Service (2015), awarded by the Chairwoman of the Federal Trade Commission
• Received the Bureau Director’s Award for outstanding contributions to Bureau efficiency and unity (2014)
• Received the Bureau Director’s Award for outstanding contributions to children’s privacy (2010)

• Member, Consumer Protection Editorial Board, Law360 (2022)
• Member, Influence Task Force, ABA Antitrust Law Section (2021-2022)
• Member, Special Ops Team: Imagining Antitrust Law Section 2.0, ABA Antitrust Law Section (2020-2021)
• Member, Research Advisory Board, By/With/For Youth: Inspiring Next Gen Public Media Audiences, Joan Ganz Cooney Center at Sesame Workshop (2020)
• Co-Chair, Privacy and Information Security Committee, ABA Section of Antitrust Law (2018-2020)
• Vice Chair, Privacy and Information Security Committee, ABA Section of Antitrust Law (2016-2018)
• Member, Superintendent’s Cybercivility Task Force, Montgomery County Public Schools (2014)