ShouldTheFTC’sCurrentCriteriaforDetermining ...（ShouldTheFTC sCurrentCriteriaforDeterminingu2026u2026）.pdfVIP

theant itrustsource w w w . a n t i t r u s t s o u r c e . c o m F e b r u a r y 2 0 1 0 1 Should The FTC’s Current Criteria for Determining Unfair Acts or Practices” Be Applied to State Little FTC Acts”? Dav id L . Be lt A lt hough twenty-eight states have enacted “Litt le FTC Acts” t hat , like t he Federal Trade Commission Act itsel , prohibit “un air acts or practices,”1 the great majority o states apply un air- ness criteria di erent rom those currently applied by the Federal Trade Commission under Section 5(a)(1) o the FTC Act.2 On the one hand, the courts o only a ew states have addressed that con- lict, an argument that a state court should ollow FTC precedent in determining whether an act or practice is “un air” may be available to litigants in Little FTC Act states. On the other hand, there may be sound reasons or applying criteria under Little FTC Acts, where determinations are made A by generalist judges and lay juries, di erent rom those applied under the FTC Act, where deter- minations are made by an expert administrative agency with a sta o economists. Choice o cri- teria may impact the breadth and clarity o the prohibition, the level o en orcement activity, and the appropriateness o legislative action to resolve the choice o criteria or determining un airness. David L. Belt is a T he FT C’s Criteria for D