Federal Trade Commission expands antitrust powers in Chair Lina Khan’s first open proceeding

The Federal Trade Commission passed a pair of pivotal measures expanding its power to regulate anti-competitive business practices, setting the stage for a more aggressive enforcement approach from the embattled agency. In the most aggressive effort, the commission voted to rescind a 2015 “Statement of Enforcement Principles” that restricted the FTC Act’s prescriptions on “unfair methods of competition” to explicit violations of existing antitrust law (specifically the Sherman and Clayton Acts). The vote proceeded along party lines, passing 3-2 with Democrats in the majority. “In practice, the 2015 statement has doubled down on the agency’s longstanding failure to investigate and pursue unfair methods of competition,” said FTC Chairwoman Khan. Without that restriction, the FTC will be free to pursue lawsuits against misconduct that might not violate classical antitrust law.

In another 3-2 vote, the FTC moved to simplify the rulemaking process for “prohibiting unfair or deceptive acts or practices.” Introduced by Commissioner Rebecca Kelly Slaughter, the changes are broadly procedural, lifting a number of self-imposed bureaucratic restrictions on the commission, allowing it to respond more efficiently to perceived misconduct. A third 3-2 vote passed a series of resolutions to streamline FTC investigations, including enabling individual commissioners to launch staff investigations into specific industries and conduct. Chairwoman Khan said she believed there were a number of industries where such an investigation would be appropriate, “including technology platforms, healthcare, and pharmaceuticals.”