Statement on the FTC’s Section 5 Authority

Thursday, August 13, 2015 - 1:00pm

WASHINGTON D.C.—U.S. Chamber of Commerce Executive Director for Antitrust Sean Heather issued the following statement on the Federal Trade Commission’s (FTC) Section 5 guidance:

“While the FTC has recognized that it’s no longer feasible to suggest it has authority under Section 5 beyond the traditional antitrust laws without providing guidance as to how it views that authority’s limits, this guidance is disappointing as it fails to establish an objective standard that closes the door to varying interpretations.

“The FTC has aggressively pursued novel theories of harm, only to be warned by the Congress or overridden by the courts.  A key question is whether this guidance will prevent the FTC from pursuing such unwise courses of action. The Chamber remains unconvinced about the use of Section 5 outside the antitrust laws, but if its scope is extended a significantly higher burden than the rule of reason standard should be placed on the government.

“Open ended authority is not what Congress intended when it created the FTC to be a sister competition agency to the Department of Justice (DOJ). Enforcement of the antitrust laws should be predictable and consistently applied regardless of whether the FTC or the DOJ is investigating competition concerns.

“Section 5 has been the main source of the FTC’s competition enforcement authority for more than 100 years, but this is the first time in history that the agency has attempted to provide clarity or identify any limits on the scope of that authority. The Chamber has been a leading voice in recent years calling on the FTC to issue guidance and on the Congress to consider legislation for that purpose.”

The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.