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ARTICLE · 11 JANUARY 2022

The FTC's Magnuson-Moss Rulemaking Process – Still An Uphill Climb

Kelley Drye & Warren LLP
Kelley Drye & Warren LLP
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Kelley Drye & Warren LLP

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We've been hearing a lot lately about the FTC's rulemaking procedures under Section 18 of the FTC Act.

United StatesConsumer Protection
Jessica L. Rich
Jessica L. Rich

We've been hearing a lot lately about the FTC's rulemaking procedures under Section 18 of the FTC Act (also known as "Mag-Moss" rulemaking). Long decried as too burdensome and difficult to use on a regular basis, this tool is now being celebrated for its enormous, untapped potential to establish industry-wide standards and enable the FTC to get monetary relief in its cases, post-AMG. (AMG didn't affect the FTC authority to obtain monetary relief when it's enforcing a rule.)

Is the old view or the new one correct? Is Mag-Moss rulemaking really so cumbersome, as many FTC staff and observers have long claimed? Have those burdens been overstated, warranting the enthusiasm we're now seeing among FTC Commissioners, consumer groups, and Congress? Did the FTC's changes to its internal rules last July (see below) really "streamline" the process as the FTC claimed?

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