On September 22, 2022, Commissioner Alvaro Bedoya of the Federal Trade Commission (FTC) delivered a speech entitled “Returning to Fairness,” challenging basic tenets of antitrust law and current enforcement.

Commissioner Bedoya suggested that the prevailing understanding of the purpose of the antitrust laws—to protect competition rather than competitors in an effort to maximize efficiency and consumer welfare—is not consistent with the congressional purpose or intent underlying these laws. For support, Commissioner Bedoya stated that the word “efficiency” is not mentioned in the congressional debate and that, over the years, “Congress [has] passed antitrust laws that in letter or spirit demanded fairness for small business . . . .”

After providing various examples of consumers and small businesses harmed by purported failures in antitrust enforcement, Commissioner Bedoya declared that “we need to step back and question the role of efficiency in antitrust enforcement.” Furthermore, Commissioner Bedoya advocated for the vigorous use of Section 5 of the FTC Act to address the issue of “unfairness” in a manner not currently addressed by other antitrust laws, and he supported Chair Lina Khan’s goal of issuing a policy statement that sets the scope of the FTC’s authority to address unfair methods of competition.

Stakeholders in every industry should expect to see more stand-alone actions brought by the FTC under Section 5 of the FTC Act addressing conduct beyond the scope of other antitrust laws.

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