Professors J. Howard Beales III and Timothy J. Muris
83 Geo. Wash. L. Rev. 2157
Published in Connection With the Law Review’s 2014 Symposium “The FTC at 100”
Throughout most of the Federal Trade Commission’s (“FTC” or “Commission”)
history, the agency has been condemned as ineffective. Indeed, the
prestigious 1969 American Bar Association Report said that the FTC should
either change or be abolished. The disastrous decade of the 1970s followed, in
which the FTC tried to become the second most powerful legislature in Washington.
The Commission then finally developed a bipartisan regulatory program,
recognizing that the FTC was not the star player in the economy but
had an important role in enforcing the rules that facilitate market interactions.
Following the ABA report’s recommendation, the program’s consumer protection
foundation was a systematic and aggressive attack on consumer fraud.
This Article discusses this modern FTC, providing details on programs
involving fraud, conventional advertising, and privacy. We explain how, embracing
a more limited role and recognizing its past mistakes, the FTC became
one of the world’s most widely respected government agencies. Unfortunately,
the agency has recently lost its way in regulating traditional advertising, threatening
to restrict truthful information to consumers that is vital to the optimal
performance of competitive markets. We also discuss the newest part of the
FTC’s mission, protecting consumer privacy. The heart of the program has
been to prevent harmful misuse of sensitive information, most notably the National
Do Not Call Registry, one of the most popular government initiatives
ever. In attempting to broaden the basis for protection of privacy, the agency
currently threatens to impede rapidly evolving information technology
markets.
