Why Dissenting Statements By FTC Commissioners Matter

Last week, the FTC, by a 3-2 vote along party lines, adopted its click-to-cancel rule, which purports to make it easier to cancel gym memberships, streaming services, and the like. [We wrote about it here.] The final rule will apply across the economy to any business that offers negative option plans (e.g., subscriptions) and would provide the Commission with the ability to obtain civil penalties from covered entities for any misrepresentation about the underlying product or service.

For longtime FTC watchers, this rule is a significant departure from other rules promulgated under Section 18 of the FTC. And while three Commissioners get to decide how the Commission interprets the law, the minority's position should not be overlooked, on this and other issues. For one thing, the minority opinion could signal where the Commission might go if there is a change in administration. For another, the minority can highlight legal questions that will need to be settled by