On July 1, 2021, the Federal Trade Commission (FTC), after allowing six days for public comment, voted to rescind the 2015 Statement of Enforcement Principles Regarding “Unfair Methods of Competition” (UMC) Under Section 5 of the FTC Act. On July 21, 2021, the FTC voted to rescind its bipartisan 1995 Policy Statement on Prior Approval and Prior Notice Provisions in merger cases.

Notably, both of these actions – along with other significant changes – were effected along party lines, with limited opportunity for public input, and without dialogue among the Commissioners. Today’s hearing will consider a wide array of reforms, many of which are relevant to the level of discretion and enforcement principles under FTC Act § 5 and to the broader capabilities and mandate of the Commission.

Abandoning the 2015 statement’s framework would remove important guardrails that established predictability and guidance in enforcement actions. The lack of predictability resulting from the FTC’s re-expanded discretion in invoking broad Section 5 authority on a case-by-case basis would create uncertainty for businesses of all sizes and across all industries. The Commission’s misadventure into UMC expansionism would generate unwarranted confusion, and eventually courts would have to grapple with questions of interpreting the outer boundaries of Section 5 authority that were previously cabined by the 2015 statement.