Charting a New Path Forward for the FTC's Section 5 Authority

Sean Heather
Senior Vice President, International Regulatory Affairs & Antitrust, U.S. Chamber of Commerce

Published

April 02, 2026

The FTC's power to police "unfair methods of competition" under Section 5 of the FTC Act has long been a source of uncertainty for businesses. A new paper from the U.S. Chamber of Commerce argues that past attempts to define this authority, both the 2015 and 2022 policy statements, have failed, and proposes a fundamentally different approach.

The Problem is Clear.

Section 5 arguably gives the FTC discretion to go beyond traditional antitrust law, but without meaningful guardrails. The 2015 statement offered principled but vague guidance and was never tested in practice. The 2022 statement, issued under FTC Chair Lina Khan, went further in the wrong direction, rejecting the consumer welfare standard, the rule of reason, and established Supreme Court precedent, while introducing subjective criteria like "coercive" or "exploitative" conduct. Courts have consistently rejected the FTC's most aggressive UMC theories, and the attempted ban on non-compete agreements was struck down for lack of rulemaking authority.

The 2022 policy statement should be rescinded.

It remains in effect despite being fundamentally at odds with half a century of Supreme Court jurisprudence, the post-Loper Bright reality that courts, not agencies, interpret statutory authority, and the practical needs of businesses trying to comply with the law. Leaving it on the books invites future misuse by any administration inclined toward overreach, chilling procompetitive conduct in the meantime.

But once rescinded, what should be put in its place?

The Chamber proposes a targeted, conduct-specific approach.

Rather than trying to craft a comprehensive policy statement or attempt unauthorized rulemaking, the FTC should:

Identify a series of specific practices it intends to challenge as UMC violations.
Explain the legal and economic rationale for each, including relevant market conditions and factual predicates for enforcement.
Provide advance notice to businesses, giving them the opportunity to adjust their conduct before facing enforcement action.
Seek public input on proposed enforcement priorities to build consensus and strengthen the legal foundation for future cases.

This approach would produce, over time, a growing body of specific guidance statements, not legally binding rules, but clear signals of enforcement intent grounded in current law and sound economics. As administrations change, some, but not all of the Section 5 policy guidance might be withdrawn, but over time, a compendium of statements will remain. Such an approach avoids the constitutional pitfalls of unauthorized rulemaking while still providing the FTC with the opportunity to shape business conduct proactively.

The new paper identifies three areas ripe for this treatment:

Invitations to collude
Deceptive conduct in standard-setting organizations
Employee noncompete agreements

The bottom line:

The FTC should scrap the 2022 statement and replace the broad, vague, and singular policy pronouncement with specific, transparent, and economically grounded enforcement guidance that protects competition without chilling it.