FTC Announces New Guidelines For Its Section 5 Enforcement Efforts

On November 10, 2022, the Federal Trade Commission (FTC or Commission) issued a policy statement outlining the Commission's expanded approach to enforcement of Section 5 of the FTC Act, which prohibits "unfair methods of competition." The FTC's "Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act"¹ (2022 Statement) comes sixteen months after the Commission withdrew a bipartisan 2015 statement addressing the same topic.² Unlike the 2015 statement, however, the Commission vote here was split along party lines, with three Democratic Commissioners voting to approve the 2022 Statement and the one Republican Commissioner voting no. The 2022 Statement is just the latest action by current antitrust agency leadership to expand the scope of their enforcement powers and indicates that the FTC, in particular, will scrutinize a wide range of conduct not thought previously to violate the antitrust laws.