The Federal Trade Commission's Use of Unfairness Authority: Its Rise, Fall, and Resurrection

Abstract

The author outlines the important role that the Federal Trade Commission's unfairness authority plays in fashioning consumer protection policy. First, the author discusses the history of the commission's use of its unfairness authority, focusing on the lessons that the commission learned from its early experiences. Second, the author discusses the three elements of modern unfairness: The injury must be (1) substantial, (2) without offsetting benefits, and (3) one that consumers cannot reasonably avoid. He also discusses the subsidiary role of public policy. Finally, the author uses specific examples to discuss how the commission has appropriately used modern unfairness policy to address difficult problems.