At this week’s National Advertising Division Annual Conference, FTC Commissioner Melissa Holyoak and FTC Bureau of Consumer Protection Director Samuel Levine presented starkly different perspectives of the agency.

On Monday, Levine provided a familiar list of the FTC’s accomplishments over the past year, including what consumers can expect from the BCP going forward:

• Rulemaking and enforcement under existing laws on “junk fees“
• Rulemaking and enforcement under existing laws on continuity marketing, including improper disclosure of terms and difficulties in canceling
• Continued enforcement on robocalls, including going after VOIP providers
• Protecting consumers from alleged deception in the sale of autos, including the proposed CARS rule
• Protecting consumers purchasing education, through enforcement on deceptive upfront claims and deceptive debt relief actions
• Seeking aggressive remedies under Section 19, including compensating consumers for time lost due to illegal activity
• Pushing for consumers to have an unfettered right to repair goods they buy
• Protecting workers and entrepreneurs, including gig workers, franchisees, MLM buyers, and consumers buying AI-focused earning products
• Protecting consumers in the housing and apartment markets through both competition and consumer protection work

Speaking about privacy, Levine criticized the “notice and consent” paradigm and arguing for more aggressive restrictions on how data is used.

Holyoak painted a different picture. While praising the hard work and dedication of FTC staff, she said many of the initiatives that Levine and FTC Chair Lina Khan have pursued go beyond the agency’s statutory authority.

Holyoak pointed specifically to the FTC’s expansion of coverage for the Health Breach Notification Rule to entities beyond those covered by enabling statute for that rule.

Holyoak also criticized the FTC’s use of its Notice of Penalty Offense authority to obtain civil monetary penalties in situations where the conduct challenged bore little relation to the prior conduct that was mentioned in the notices that the FTC mailed out.

She differed most sharply with Levine regarding privacy. Holyoak criticized the FTC’s use of the term “surveillance” in its public remarks and proposed privacy rulemaking to describe online tracking. She said online tracking, while having the potential for abuse in certain situations, also provides consumers and businesses, especially small businesses, with significant benefits.

Holyoak also defended the notice and consent framework for consumer privacy by paraphrasing Winston Churchill, noting that notice and consent may be the worst framework for dealing with privacy, except for all the others. She was critical of FTC efforts to manage how data is used by businesses.

The way in which Levine and Holyoak referenced former FTC Chair Michael Pertschuk best illustrated their differing perspectives. Pertschuk led the agency during the Carter administration and undertook an aggressive approach that Khan’s FTC appears to emulate.

Levine ended his remarks by quoting Pertschuk calling the FTC “the greatest public interest law firm in the world.” In contrast, Holyoak noted that the excesses of the Pertschuk era led to Congress decimating the agency’s funding and staff and that the FTC ran the risk of a similar result now. She also pointed to Congress’s refusal to restore the FTC’s equitable monetary relief authority based on a fear that the FTC was already abusing the powers it had.

Holyoak presented a forceful critique of many of the signature pieces of Khan’s and Levine’s agenda and approach. Much of what happens next will likely be decided on November 5.

Finally, a tip of the hat to Lesley Fair, who has led the FTC’s Business Blog and been the public voice of the Bureau of Consumer Protection, as she moves on from the FTC. I had the pleasure of working with Lesley and will miss her posts and presentations.

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