The Federal Trade Commission in its 100-year history has never agreed on formal principles for policing companies engaged in “unfair” competition. That looks set to change.
Members of the FTC are close to a bipartisan agreement to lay out for the first time how the commission views its authority to bring cases against businesses it believes compete unfairly, according to people familiar with the deliberations.
An accord would be a breakthrough for Democrat and Republican commissioners who have clashed over when and how the FTC should deploy the century-old Section 5 of the FTC Act in enforcement matters. The provision declares “unfair methods of competition in or affecting commerce” to be unlawful. But the agency has faced criticism that with no formal guidelines or parameters, it is hard for anyone—businesses as well as regulators—to know what may be considered unfair.
“Unfair” in this context is a purely legal definition, and there already are laws on the books governing what is and is not permissible in our commerce. We have anti-trust laws that govern abuse of monopoly power. We have truth-in-advertising laws that govern how businesses can market their products. We have contract laws that sanction dishonesty in contract negotiations and that define liability when mistaken, but fundamentally honest, statements are made in those negotiations.
That’s all that we need, that’s all the FTC needs, and the FTC has had that for well over 100 years, dating at least to the Sherman Antitrust Act. This new “accord” will be just another bureaucratic nightmare, adding layers of compliance requirements and determinations to any FTC action—and so elevating costs for any business the FTC contemplates violating in some way.
Underlying all of that is all of this: Americans don’t need a rule, or a “guideline,” to govern every aspect of every action in their lives.