Terry Calvani and Angela Diveley on Injury to Competition and Efficiencies in Section 5 Claims
We welcome Commissioner Wright’s contribution in making the important point that the Commission’s unfair methods of competition (UMC) jurisdiction under Section 5 of the FTCA should be subject to limiting principles. We make two observations about the policy statement and a more general observation about the FTC in light of its upcoming 100th anniversary. The first is that injury to competition has long played a role in the debate concerning the appropriate scope of Section 5. The second is that it is not yet clear what role efficiencies should play in a Section 5 claim. Finally, we observe that Section 5 is one of a number of aspects of the FTC’s enforcement mandate that is ripe for reconsideration as we approach the centennial anniversary of both the statute and the agency.