Mel Marquis

The US Federal Trade Commission and Section 5 of the Federal Trade Commission Act: Institutional Aspects and Jurisdictional Penumbras

  • Abstract

Informations and abstract

Keywords: Federal Trade Commission, Section 5 FTC Act, Section 1 Sherman Act, Section 2 Sherman Act, U.S. antitrust enforcement

The present article is intended to review and discuss Section 5 of the FTC Act, the principal jurisdictional basis for the antitrust enforcement activities of the U.S. Federal Trade Commission. Part I presents a brief history of Section 5 and then a more detailed overview of the FTC as an institution: its composition, administrative procedures and antitrust jurisdiction; its relationship with the Antitrust Division of the U.S. Department of Justice; and its remedial powers. Part II begins with a review of what U.S. lawmakers sought to achieve with the adoption of the FTC Act, and with Section 5 in particular. It then proceeds with a discussion of the pertinent jurisprudence and administrative practice from the 1970s to the present. Part III concludes the article with observations and conclusions regarding the debate unfolding in the US regarding Section 5. The author argues that the FTC's use of Section 5 should be shaped by reference to specific antitrust-relevant goals. In brief, Section 5 should be regarded as a complement to, but not as a substitute for, the provisions of the Sherman Act.

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