Industry Asks FTC to Refocus Section 5 Authority Against Unfair, Deceptive Acts
The FTC should reevaluate how it uses Section 5 authority to enforce against unfair and deceptive practices, industry groups told the agency in comments due Friday (see 2509290042).
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The FTC’s draft strategic plan outlines several pillars of emphasis, including protection against unfair or deceptive business practices. Chairman Andrew Ferguson in August reminded the tech industry of its obligations to protect privacy and data security, while emphasizing the FTC Act’s prohibition on unfair and deceptive practices (see 2508210031).
The Digital Childhood Institute announced Friday a complaint asking the FTC to investigate whether Google is engaging in unfair and deceptive practices (UDAP) by knowingly exposing children to harmful content, facilitating exploitative contracts with minors and enabling unlawful data collection. The complaint claims potential COPPA violations, as well (see 2510200039).
In comments on the draft plan, various industry groups asked the agency to clarify how it plans on using Section 5 on UDAP and competition enforcement. They suggested reverting to an enforcement posture predating the FTC’s Section 5 stance under Biden administration Chair Lina Khan.
NetChoice asked the FTC to issue “clear guidance specifying what conduct constitutes unfair methods of competition or unfair and deceptive acts and practices.” A public guidance process would allow “stakeholders to explain the procompetitive benefits of scrutinized activities while providing businesses the fair notice necessary to align their conduct with legal requirements.” The tech association commended the FTC for a stated commitment that includes protection against unfair and deceptive business practices.
ACT | The App Association asked the FTC to focus resources on “clear cases of systemic harm that demonstrably engage in unfair or deceptive acts or practices and/or unfair methods of competition.” Both ACT and the U.S. Chamber focused on the competition aspects of Section 5. ACT argued Khan’s 2022 policy statement “represents a significant shift from the FTC’s previous approach, expanding the agency’s interpretation and enforcement powers beyond traditional antitrust laws.”
The U.S. Chamber of Commerce welcomed the draft plan’s “refocusing” on the FTC’s “core mission areas and correcting many missteps of the prior regime.” The chamber asked the agency to repeal the current Section 5 guidelines, arguing they are “untethered from statute, and which have created significant uncertainty within the business community.”