Andy Jung is a Legal Fellow at TechFreedom.
The Federal Trade Commission (FTC) is best known for policing unscrupulous businesses practices that cause harm to consumers. Obvious examples like price fixing, identity theft, and false advertising come to mind. Recently, however, the FTC set its regulatory sights on a surprising new target: legitimate business activity.
Last month, the FTC released and requested comments on the agency’s Draft FTC Strategic Plan for Fiscal Years 2022 to 2026. At first glance, the Draft Strategic Plan reads like any other dry, unremarkable report from the federal government. On page four, however, the FTC proposes an astounding change to the agency’s mission statement.
For 25 years, the FTC has continuously defined its mission as: “Protecting consumers and competition by preventing anticompetitive, deceptive, and unfair business practices through law enforcement, advocacy, and education without unduly burdening legitimate business activity.” In contrast, the Draft Strategic Plan strikes “without unduly burdening legitimate business activity” from the FTC’s mission without so much as a footnote highlighting the deletion. The draft does not mention or explain the change in any way.
The FTC files these strategic plans in compliance with the Government Performance and Results Act of 1993 (GPRA), which requires federal agencies to set goals, devise performance metrics, and assess past results. Specifically, GPRA requires agencies to submit “strategic plans” containing “a comprehensive mission statement covering the major functions and operations of the agency.”
The FTC first formally articulated the agency’s mission in its 1997-2002 Strategic Plan. Three years later, the FTC released the 2000-2005 Strategic Plan with a Statement of Mission nearly identical to the original from 1997. The 2000-2005 Strategic Plan simply replaced “without unduly burdening” with the phrase “but not impede.” The FTC’s mission remained substantively unchanged.
The 2003-2008 Strategic Plan reverted back to the “without unduly burdening” language. Since then, all subsequent FTC Strategic Plans (fiscal years 2006-2011, 2009-2014, 2014-2018, and 2018-2022) have repeated the original 1997 mission statement—front and center, year after year: the ever-present “without unduly burdening legitimate business activity” clause. Notably, the mission remained unchanged through Democratic and Republican administrations, establishing the clause as an institutional pillar of the agency rather than merely ideological rhetoric.
In fact, many of the FTC’s long-standing policies reflect this balanced approach of policing deceptive and harmful practices while allowing legitimate business. For example, to “justify a finding of unfairness” a consumer’s injury “must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided.” Additionally, under the FTC Policy Statement on Deception, “the Commission will find deception if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.” Further, Section 5(n) of the FTC Act asserts that the FTC has no authority “to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”
These ‘reasonable consumer’ standards balance deterrence against the risk of unreasonable or bad faith interpretations by consumers to distinguish between legal, procompetitive practices and illegal conduct. Historically, the FTC’s mission statement has reflected this understanding that a balanced approach promotes competition and benefits consumers. Now, the FTC is abandoning balance to gain more power over the economy.
By deleting the clause, the FTC weaponizes uncertainty against businesses. The Draft Strategic Plan suggests that the FTC intends to police or burden certain legitimate business activity, begging the question: what types of conduct will the agency target next? Smart money is on the business practices of large technology firms like Google, Amazon, Meta Platforms, and Apple.
Meanwhile, as the FTC scrutinizes the US’s most innovative companies, consumers continue to fall victim to long-recognized forms of fraud and malfeasance. Between 2019 and 2020, reports to the FTC of identity theft and fraud increased by 45 percent, and related monetary losses will likely increase yet again in 2021. At the same time, the FTC increasingly notes its “limited resources,” and the agency is experiencing high staff turnover.
In The FTC at 100 report, former Commissioner Ohlhausen advised the FTC on how to best allocate the agency’s precious time and energy: “a focus on consumer harm can help avoid unduly burdening legitimate business—particularly in high-tech and other rapidly innovating industries that expand consumer choice and spur job growth. When we concentrate our scarce agency resources instead on speculative harms or harm to individual competitors, we may end up making consumers and competition worse off.”
The FTC should heed the former Commissioner’s advice. In a world wrought with illegitimate business activity, the FTC must avoid wasting precious resources on the “speculative harms” of legitimate business practices. Ultimately, the agency should retain the “without unduly burdening legitimate business activity” clause in the FTC’s mission and continue using a balanced regulatory approach which allows, not burdens, procompetitive conduct.