FTC Competition Chief Defends Stand-Alone Section 5 Use In Unfair Competition Cases

In a blog post last Friday, Debbie Feinstein, Director of Competition at the Federal Trade Commission (FTC), defended the agency's use of FTC Act Section 5 to target unfair methods of competition outside the scope of the Sherman and Clayton Acts.

While the use of Section 5 in consumer protection cases has long been established, many, including U.S. Congress members and FTC Commissioners, have urged the FTC in recent years to issue clearer guidelines on how Section 5 will be used to target conduct related to unfair methods of competition.  Feinstein suggested that those interested in the FTC's future use of Section 5 "should look at what the Commission has done and the reason it gave for acting to stop the behavior. . . . The touchstone of every stand-alone Section 5 claim . . . is likely or actual harm to competition or the competitive process."