The U.S. Chamber Institute for Legal Reform (ILR) submitted comments to the Federal Trade Commission (FTC) expressing concern over the agency’s increasing reliance on standardized, inflexible consent orders in Section 5 enforcement actions. ILR argues that while consent orders can efficiently resolve individual cases, their current use does not provide companies with fair notice of the FTC’s legal interpretations, especially as these orders are not subject to judicial review and often lack case-specific analysis or guidance.
ILR highlights that this “cookie-cutter” approach to consent orders fails to clarify what constitutes compliant or noncompliant conduct under Section 5, leaving companies—particularly smaller ones—vulnerable to uncertainty, unnecessary compliance costs, and potentially chilling lawful business practices. The organization contends that the lack of clear standards undermines both consumer protection and the FTC’s mission, as companies cannot reasonably foresee or understand the requirements imposed upon them.
To address these issues, ILR recommends that the FTC provide more detailed guidance on what practices are considered anticompetitive, unfair, or deceptive, and adopt a more analytical and flexible approach when crafting consent orders. The ILR suggests that the FTC utilize rulemaking, publish industry-specific guidelines, and allow for greater input from investigated companies, ultimately aiming to enhance clarity, fairness, and consumer protection in Section 5 enforcement.
