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September 29, 2021


On behalf of the U.S. Chamber of Commerce (“the Chamber”), we are pleased to submit these comments to the Federal Trade Commission (“FTC”) in response to its Solicitation for Public Comments on Contract Terms that May Harm Competition. These comments will focus on exclusive contracts, in reference to a Petition for Rulemaking to Prohibit Exclusionary Contracts. That petition asks the FTC to interpret the FTC Act’s prohibition on unfair methods of competition (UMC) to “prohibit businesses from using exclusive dealing, exclusionary payments, and other similar practices … that substantially foreclose rivals from customers, distributors, or suppliers of critical inputs.”

As explained more fully in the document, the FTC should combat potentially anticompetitive exclusive contracts through its traditional tools, such as case-by-case litigation, rather than through a rule for two principal reasons. First, the FTC lacks legal authority to promulgate a UMC rule that would prohibit or restrict exclusive contracts. Second, and in any event, such a rule would harm consumers by banning or discouraging the many pro-competitive aspects of such contracts.

The petition advocates for a “solution” in search of a problem. Should the FTC attempt to respond to the petition and initiate a rule making, it will face strong legal challenges that waste precious enforcement resources.