The Federal Trade Commission’s Bureau of Consumer Protection (BCP) has announced a new program that gives businesses and industry groups a new way to seek guidance about ambiguities in FTC rules.
How the FTC Rule Guidance Program Works
Under the new BCP Rule Guidance Program, interested stakeholders can submit questions identifying a “genuine ambiguity” in an FTC rule, a substantive conflict between an FTC rule and another statute or rule, or another significant issue with a Commission rule. If BCP concludes that the issue warrants guidance, staff may issue a response that will be made publicly available.
This could be a useful development for businesses confronting FTC rules that leave important compliance questions unanswered. Rather than waiting for an enforcement action to learn how staff interprets an ambiguous provision, businesses and industry groups now have a mechanism for putting the issue directly before BCP.
Limits on FTC Compliance Guidance
However, BCP will not answer questions that can readily be resolved by reviewing the rule itself, existing FTC guidance, or formal advisory opinions. And the program is not intended to outsource ordinary compliance judgments to FTC staff. For example, BCP specifically says it will not determine whether a particular disclosure satisfies a performance-based standard such as “clear and conspicuous.”
The resulting guidance also is not binding on the Commission or the public. BCP retains discretion over whether and when to address a submitted issue.
When Businesses Should Seek FTC Guidance
Still, the program creates an interesting new avenue for businesses dealing with genuinely unsettled questions under FTC rules. Companies should consider whether recurring compliance questions—particularly questions involving the scope or interpretation of a rule rather than how a settled standard applies to a particular advertisement—may be appropriate candidates for submission.
Stakeholders should exercise restraint before jumping to send questions. These questions, and their answers, will likely be discoverable in any litigation and could be used against the defendant. For example, where statutes require “knowing” violations (such as ROSCA), an answer from BCP resolving ambiguity could result in the FTC providing specific facts showing the company’s knowledge. Similarly, for rule violations requiring “actual notice,” the FTC could rely on its answers to take the position that companies are on actual notice.
We will be watching to see what questions BCP chooses to answer and, perhaps more importantly, what those answers tell us about how the FTC interprets its rules. For more insights into advertising law, bookmark the All About Advertising Law blog and subscribe to our monthly newsletter. To learn more about Venable’s Advertising Law services, click here. And listen to the Ad Law Tool Kit Show—a podcast from Venable.
