We recently wrote about the Federal Trade Commission’s (FTC’s) recent approval of a pair of Made in USA (MUSA) settlements. It is also worth noting that the approvals drew a statement and a dissent from the Commission’s Democrats and a concurrence from Chairman Simons. As is often now the case, the dispute made its way onto Twitter, and Commissioner Slaughter became something of a Twitter folk hero for declaring that comments filed in response to the proposed settlement had caused her to change her mind. (The folks who handle comments filed at the FTC may find themselves a bit busier going forward.)
The various statements focused on remedies, clearly one of the hotter consumer protection topics at the FTC these days. Commissioner Slaughter’s now-famous change of mind involved her prior belief that the Commission had no basis to seek aggressive monetary remedies for these cases absent evidence that consumers had paid a price premium for the MUSA products. Her dissent corrects that misimpression and notes that as a prudential matter, the FTC has simply opted not to seek disgorgement from first-time MUSA violators. While Commissioner Slaughter signals support for this approach generally, she writes that in the present two cases (and others like it), the violations are so egregious that disgorgement (and admissions of liability) would be appropriate. Finally, Commissioner Slaughter notes that the public comments have persuaded her that the Commission should add “targeted enforcement resources to rooting out this pervasive deception.”
Commissioner Slaughter also supported Commissioner Chopra’s separate call to put more teeth into MUSA enforcement and enable the imposition of civil penalties through rulemaking or the use of Section 5(m)(1)(B) (knowingly engaging in an act the FTC, in a final litigated order, has found to be deceptive).
Chairman Simons wrote a concurrence in which he defended the FTC’s acceptance of the proposed settlements. He emphasized that the settlements are consistent with Commission practice of the past several decades and he saw no reason to “change the rules” with respect to settlements that were negotiated before the current Commissioners took office. The Chairman also reiterated his potential support for monetary relief in some MUSA cases – for example, where consumers paid a price premium – while noting that evidence of a price premium is not required in order for the Commission to seek redress.
Finally, the Chairman noted that later this year the Commission will hold a workshop on its MUSA enforcement program, which will consider, among other things, whether the Commission should pursue or impose new remedies for MUSA violations and the potential costs and benefits of any such approaches. Given the Commissioners’ various statements on this issue, any of you who are in mourning over the imminent end of GOT may want to tune into the upcoming workshop.