The FTC has been pounding the pavement this week, giving testimony, statements, and remarks to multiple types of audiences, including the U.S. Senate. More on these talks, as well as an update on a forthcoming event on protecting children from digital advertising, after the jump.

Monday, September 19, 2022

Bureau of Consumer Protection: National Advertising Division Annual Conference

  • FTC Bureau of Consumer Protection Director Samuel Levine and FTC Commissioner Alvaro M. Bedoya both spoke at the 2022 National Advertising Division Annual Conference. Mr. Levine’s remarks focused on the agency’s recent work targeting perpetrators of consumer fraud and seeking aggressive remedies despite the agency’s loss of its ability to obtain equitable monetary relief in federal court for consumers following an April 22, 2021 Supreme Court decision. Commissioner Bedoya, in contrast, discussed the FTC’s recent advance notice of proposed rulemaking to rein in unfair and deceptive trade practices in the digital age. Commissioner Bedoya explained that the Notice pertains to commercial surveillance and lax data security practices, and it is designed to fill gaps in data security law, including the lack of a baseline consumer privacy rule. He urged attendees to comment on the proposed rule; the deadline to comment is October 21, 2022.

Tuesday, September 20, 2022

FTC Operations: Chair Khan Testimony Before Senate Subcommittee

  • Chair Lina Khan testified before the Senate Committee on the Judiciary’s Subcommittee on Antitrust, Competition Policy and Consumer Rights regarding the FTC’s current competition enforcement activities and priorities. She recounted some of the agency’s recent public listening fora and explained that the FTC is updating its tools to “better correspond to new market realities.” The Commission is also working harder to collaborate with other governmental institutions such as the DOJ and the NLRB. Chair Khan also addressed the FTC’s recent efforts in increased merger enforcement, scrutiny of digital markets (including device repair restrictions), and health care, including the FTC’s lawsuit against “Pharma Bro” Martin Shkreli. She noted that the number of FTC employees has decreased by about one-third since 1980 and called on Congress to work with the agency on resources and tools. Like Director Levine, Chair Khan also brought up the April 22, 2021 Supreme Court decision that halted the FTC’s ability to pursue equitable monetary relief in federal court. Chair Khan concluded by summarizing the FTC’s collaboration with the public and other agencies to obtain information that would help guide the FTC’s policies and priorities going forward.

Bureau of Competition: Remarks to American Bar Association Antitrust In-House Section

  • Commissioner Noah Phillips addressed the ABA In-House Section in Bozeman, Montana, reflecting on his time with the agency and discussing recent antitrust-related changes within the FTC. He emphasized that the agency is still “one of continuity and bipartisanship” but criticized its shift over the past 19 months to a more negative view of mergers and acquisitions. He questioned whether this shift deterred deals or increased agency efficiency, and wondered where the agency was headed with new merger guidelines. Commissioner Phillips also explained his opposition to the agency creating new substantive competition rules, including the potential adoption of per se illegality standards.

Wednesday, September 21, 2022

Bureau of Consumer Protection: Children and Digital Advertising

  • The FTC published the final agenda for its October 19, 2022 online event Protecting Kids from Stealth Advertising in Digital Media. The overall event examines “the current kids digital advertising landscape, its impact on children, and whether current legal and regulatory regimes are equipped to protect children from potential harms.” Additional items on the agenda include two presentations discussing digital spaces that children frequent and the types of marketing techniques used on them, as well as three panel discussions on children’s cognitive abilities, the current advertising landscape, and possible solutions to protect children. The virtual event will begin at 9 a.m. EST via a webcast at the FTC’s website, and public comments on these topics may be submitted until November 18, 2022.

Thursday, September 22, 2022

FTC Operations: Additional Conference Presentations

  • Director Levine and Commissioner Bedoya again gave speeches to close out the week.
    • Director Levine gave remarks at the Direct Selling Association Legal & Regulatory Seminar. He summarized the FTC’s February 2022 advance notice of proposed rulemaking concerning deceptive earnings claims made by companies, including multi-level marketing companies (“MLMs”), and responded to comments that had been submitted by consumers regarding experiences with MLMs. Director Levine highlighted misleading earnings and lifestyle claims by MLMs, and how MLM structure fits into classic pyramid scheme law. He emphasized that, rather than shutting down MLMs, “we want MLMs to follow the law, and we want your participants to succeed – we wouldn’t be here otherwise.”
    • Commissioner Bedoya spoke to the Midwest Forum on Fair Markets. His talk, titled “Returning to Fairness,” explored antitrust law’s focus on efficiency, and what that focus meant for rural America. He used an example of independent groceries and how they face “challenges that those big box stores do not” such as differences related to wholesaler pricing. Commissioner Bedoya attributed these and other challenges in health care and farming to the Robinson-Patman Act. He concluded by suggestion that “we need to step back and question the role of efficiency in antitrust enforcement” and “make sure we don’t leave rural America behind.”