Document Type

Article

Publication Date

4-2026

Abstract

On November 10, 2022, the Federal Trade Commission (FTC or the “Commission”) issued a policy statement on the scope of unfair methods of competition under section 5 of the Federal Trade Commission Act (FTCA). This policy statement marked a significant shift, reviving a broad interpretation of the agency’s authority to police anticompetitive conduct. The antitrust defense bar reacted with alarm, arguing that the principles are overly ambiguous and lack guidance. This Essay contends that reaction is misplaced. The statement draws on a rich body of U.S. Supreme Court and circuit court precedent that the antitrust bar seems to have largely forgotten.

This Essay first explores the historical enforcement of section 5 as an expansive tool reaching beyond the Sherman Act and Clayton Act. It then examines the period from the 1980s to the 2020s, when section 5 enforcement was largely dormant and marked by overreliance on policy statements and a narrow economic lens. Next, it analyzes the 2022 policy statement and argues that the antitrust defense bar’s reaction reflects a broader pathology—dependence on agency speeches and policy statements at the expense of statutory text and case law. Finally, it examines the renewed section 5 enforcement under the administration of President Joseph R. Biden Jr. in cases involving Amazon, pharmacy benefit managers (PBMs), the crop protection industry, and the “right to repair.” The Essay concludes by discussing section 5’s future and its importance in modern antitrust enforcement, particularly in the age of artificial intelligence (AI).

Disciplines

Administrative Law | Consumer Protection Law | Law | Law and Economics

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