FAQ About the FTC’s Controversial New “Unfair Methods of Competition” Policy

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The Federal Trade Commission (“FTC”) released a new policy statement of its enforcement priorities for Section 5 of the FTC Act, which makes unlawful “unfair methods of competition.” Since the passage of the FTC Act in 1914, the FTC has struggled to define with precision what conduct violates § 5 beyond conduct that is unlawful under other antitrust laws. If implemented as drafted, the policy statement would mark a significant expansion of antitrust enforcement. However, past FTC efforts at expansive § 5 enforcement have been rejected in the courts. This Jones Day white paper summarizes the FTC’s policy statement, identifies the areas where business risk has changed the most, and provides practical guidance for business about how to react (and not overreact) to this development.