FTC Releases Guidance on Section 5 Unfair Competition
On August 13, the Federal Trade Commission (FTC) issued the
first policy statement on Section 5 of the FTC Act
in the agency's 100-year history in a bipartisan, 4-1 vote. The
one-page policy statement outlined the broad principles of when the
FTC will use its authority under Section 5 to police "unfair
methods of competition in or affecting commerce." 15 U.S.C.
§ 45(a)(1). The FTC's statement identified three
fundamental principles to guide its decision-making as to whether
to challenge an act or practice as an unfair method of competition:
First, the FTC will "be guided by the ... promotion of
consumer welfare" that underpins all antitrust laws. Second,
the act or practice will be evaluated under "a framework
similar to the rule of reason," meaning it must cause or be
likely to cause harm to competition "taking into account any
... efficiencies and business justifications." Finally, the
FTC will consider whether
