Daniel Gilman Quoted in MLex on FTC’s Section 5 Authority Over AI Marketing
MLex quoted Daniel Gilman, ICLE Senior Scholar, in a piece examining the FTC’s potential use of Section 5 authority to regulate AI marketing claims. Gilman, a former advisor at the FTC’s Office of Policy Planning, distinguished between straightforward false advertising cases and a broader range of conduct that could raise First Amendment concerns, questioned the viability of the FTC’s implied state law preemption argument, and noted that the agency has yet to bring a specific case or propose a formal rule.
Read the full piece here.
Some Section 5 cases are straightforward, said Daniel Gilman, a senior scholar at the International Center for Law and Economics and former advisor at the FTC’s Office of Policy Planning. For example, the FTC might allege that an AI firm has lied about the performance of its product.
False advertising is not constitutionally protected, Gilman said, but other cases could raise First Amendment concerns.
“One can conceive of cases where there simply is fraudulent marketing… and yet there’s this very, very large space that might not be that at all,” Gilman said. It’s an “open question” whether the FTC plans “to intrude upon that.”
Gilman also questioned the viability of the FTC’s argument for implied state law preemption. Courts are much more deferential to express, or explicit, preemption, he said.
“Good luck finding a case that voids state law on the idea that it conflicts with the underlying purpose of Section 5,” Gilman said.
For now, the FTC has not brought a specific case or even proposed an official rule, he said.
“Does this foreshadow law enforcement, or is it saber rattling, or maybe something in between?” Gilman asked.