Taking a page from Federal Trade Commission legend (and one of our mentors) Bob Pitofsky, the FTC recently announced that it plans to hold a series of public hearings modeled after the FTC’s 1995 “Global Competition and Innovation Hearings.” New FTC Chair Joe Simons said that the hearings will provide the FTC with an opportunity to engage in “self-examination and critical thinking” to ensure that the agency can keep pace with changes in the economy. Chairman Simons also recently told reporters that regardless of what the hearings may demonstrate, “Just in terms of priorities: our mantra is vigorous enforcement. That is what I did the last time I was here in the Bureau of Competition, and that is what I expect to do now not only in competition but also in consumer protection.”
Public comments may be submitted on any of the proposed topics until August 20 with hearings expected to take place in the fall and winter. Most of the topics are of more relevance to the Commission’s competition mission, but a few also relate to consumer protection. For example, the Commission is inviting comments on the state of consumer protection law and enforcement generally as well as consumer protection issues specific to the communications, information and media technology fields. Comments are also invited on the Commission’s investigation, enforcement and remedial processes as well as possible unfair or deceptive conduct in markets that feature “platform businesses.” Not surprisingly there are also a number of topics centered around data security including the extent of the Commission’s remedial authority.
One topic in particular that caught our eye is “the interpretation and harmonization of state and federal statutes and regulations that prohibit unfair and deceptive acts and practices.” We have of late seen an increasing tendency for states, California in particular, to pass consumer protection laws or regulations that have stricter regulatory requirements than their federal counterparts. It has long been a given that the FTC exerts very little preemption over state laws and that states are free to impose stricter requirements so long as the requirements do not contradict the federal counterpart (e.g., the FTC says a disclosure has to go on the right and California says it has to go on the left.) If the FTC is rethinking that philosophy it would perhaps not be surprising, particularly in an administration which favors less regulation; not more. Back in the day of direct mail and local radio spots a state could impose strict advertising requirements without much risk that those requirements would “bleed over” into other jurisdictions, but such is less and less the case in this digital age. When companies are reaching out to consumers via websites, email, or texts it becomes more difficult to create California-specific websites or campaigns or even to know which consumers are in California and which are not. The result is what we have sometimes referred to as the Californization of Consumer Protection Law where the standard set for California essentially becomes the standard nationwide. Not only does the California requirement then supplant the FTC it also supplants the intent of other states that may have opted for a lesser regulatory scheme. In the past California had a far more restrictive standard for “Made in USA” claims than the FTC, but it then amended its standard to bring it much closer to that of the FTC. However, California is implementing changes to its negative option law that arguably go beyond the requirements of both the FTC and multiple states with respect to issues like the means of cancellation and notice. In addition, California’s CAN-SPAM law has multiple provisions that go beyond current federal law. In the past few days we’ve also seen California pass a sweeping new consumer privacy law that may also from a practical standpoint require changes not just in California but nationwide.
However, although one can imagine that the FTC may be less than excited to watch California, and not itself, set the bar for at least some aspects of consumer protection, the bigger question is what can the FTC do about? Getting Congress to create express preemption seems unlikely to say the least. Are there other creative arguments that might be made regarding implied preemption or even commerce clause issues? For anyone who feels like they spend a disproportionate amount of their time worrying about California law or proposed California legislation, the FTC’s hearings on this topic are worth watching to get a better sense of where the agency may be headed.