On July 9, 2025, the Federal Trade Commission (FTC) hosted a workshop focused on perceived “dangers” arising from unfair or deceptive trade practices in marketing a variety of health care services falling under the label of “gender-affirming care” (GAC) for minors. Medical professionals, patients, parents, attorneys, and others shared their perspectives on the intersection between consumer protection under the authority of FTC and the provision of GAC. The FTC is expected to issue a public request for information next week and allow the public 60 days to comment.
Although ostensibly following a format similar to previous FTC workshops on “hot” issues, in this instance, the workshop presented a clear shift in FTC approach and also appears to indicate a new area of FTC enforcement priority. Given the breadth of medical therapies and interventions that may fall under the broad label of GAC, including standard mental health support services, such as counseling, businesses marketing health care services to minors should be aware of the FTC’s new focus on this topic.
What is “Gender Affirming Care”?
According to the World Health Organization, GAC encompasses a broad range of social, psychological, behavioral, and medical interventions “designed to support and affirm an individual’s gender identity” when it conflicts with the gender they were assigned at birth. Providing GAC to minors, and providing hormone therapy in particular, is a controversial medical practice. In recent years, a growing number of state lawmakers have enacted or considered enacting laws to prohibit certain gender-affirming treatments for minors, and/or to impose penalties on health care professionals who provide such treatments. There has also been litigation aimed at blocking some of these laws, including actions taken by medical organizations and trade groups, who argue that scientific evidence exists to support the same therapies the laws seek to block. The issue and the legislation related to it remains embroiled in the courts, and little is settled.
The Federal Trade Commission’s Authority to Review Health Care Marketing Claims
Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45) (FTC Act) gives the FTC broad authority to protect consumers from unfair or deceptive acts or practices. Historically, however, the FTC limited its review of health care marketing claims. Although the FTC has always required competent and reliable scientific evidence (C&RSE) to support safety and efficacy claims in the context of health products, for the most part, it limited its review in the field to dietary supplements.
The focus with respect to these claims evolved following the 2022 issuance of new guidance on health-related claims, Health Products Compliance Guidance (2022 Guidance). Intended to provide greater clarity to advertisers making health-related claims, the 2022 Guidance applies to all health products, not just dietary supplements. The 2022 Guidance indicated that health-related marketing claims were to be an increased enforcement priority for the FTC. Since the issuance of the 2022 Guidance, the FTC has taken enforcement action against individuals and companies that have engaged in deceptive practices in connection with the marketing of a broad swath of health care services.
The FTC’s Workshop Highlights
The FTC’s workshop on July 9, 2025, presented a new area of inquiry for the FTC, and appeared to build on positions taken primarily by activists strongly opposed to any health care characterized as GAC. FTC Chairman Andrew N. Ferguson outlined the FTC’s perspective on what constitutes a deceptive trade act or practice and addressed that the FTC’s authority could be implicated if there is evidence that medical professionals or others omitted warnings about the risks associated with GAC for minors or made false or unsupported claims about the benefits and effectiveness of GAC for minors. Chairman Ferguson maintained that the FTC’s review is necessary when it comes to GAC in order to protect parents and children and “ensure that everyone can make an informed choice about their own path to healing.”
During her remarks, FTC Commissioner Melissa Holyoak stated that the FTC’s role in this space is to “protect children from deceptive statements regarding such treatments.” She outlined three principal reasons why the FTC should use its authority to combat “unfair or deceptive practices related to [GAC]”, which included: (1) FTC’s history of enforcement actions against unfair and deceptive health care related claims; (2) the “significant and evolving changes and protocols for treating gender dysphoria”; and (3) a prioritization of enforcement against unfair deceptive practices that present potential of serious harm to children.
When expanding on the first point, Commissioner Holyoak noted, “[t]he FTC does not regulate the practice of medicine. The FTC cannot make policy decisions limiting sex transition treatments for minors. What the FTC can and should do is protect children from deceptive statements regarding such treatments. The FTC has previously enforced and will continue to enforce against deceptive representations made by medical practitioners, including claims of connection for treatments for transgender children.” Additionally, Commissioner Holyoak noted that claims about health benefits require substantiation in the form of “competent and reliable scientific evidence,” from which she distinguished independent practitioners’ experience and advisories from medical organizations.
Chad Mizelle, U.S. Department of Justice (DOJ) Chief of Staff, noted that the FTC has a very broad mandate, particularly in consumer protection, to root out fraud and is empowered with powerful investigative tools to do so. With respect to civil and criminal fraud, Mizelle noted that although exact details of DOJ’s targets are not yet public, nearly 20 subpoenas have been issued by the DOJ to clinics that have provided GAC. Additionally, Mizelle noted that DOJ is investigating violations such as health care fraud and false statements–violations that could result in either civil or criminal liability for clinics engaged in the provision of GAC if investigations result in a basis for such liability. He mentioned that DOJ has also issued subpoenas to major manufacturers of the drugs used in GAC-related medical interventions for possible violations of drug marketing laws and the federal Food, Drug, and Cosmetics Act (21 U.S.C. ch. 9 § 301 et seq.). Finally, Mizelle emphasized that DOJ is working with Congress to revise existing criminal laws related to female gender mutilation to “to more robustly protect children from the chemical and surgical mutilation.”
Key Takeaways for Health Care Providers
Prepare for Enforcement Actions
Health care stakeholders should take note that the FTC is likely to pursue enforcement actions in the future against providers of GAC to minors. Specifically, the FTC may pursue civil penalties or injunctions to ensure stakeholders do not engage in what the FTC or other agencies may consider deceptive or untruthful marketing to consumers. Additionally, the FTC may initiate rulemaking to establish clearer standards related to these practices. Although the FTC is soliciting feedback on this issue, stakeholders in the health care space should be aware of potential enforcement actions and class actions in the future.
Interpretations of Applicable Services May Expand
The scope of therapies and treatments falling within the FTC’s enforcement parameters may be very broad.
Take a Second Look at Marketing Materials
Furthermore, even health care providers that do not expressly hold themselves out as offering or specializing in GAC could face scrutiny if their marketing materials include terminology the FTC now finds objectionable or if they offer services to minors that could broadly be considered as falling under the GAC umbrella, such as counseling.
If you would like to watch the workshop in full, the FTC stated it will provide a recording on its website, linked here.
At Foley, we are actively advising providers across the country on how to respond to this evolving legal landscape. From policy development and compliance strategy to enforcement defense, we are here to help. Please reach out to the authors, your Foley relationship partner, or to our Health Care Practice Group and Health Care & Life Sciences Sector with any questions.
