Dissenting Statement of Commissioner Rebecca Kelly Slaughter, 

Regarding the Matters of Sandpiper/PiperGear and Patriot Puck

April 17, 2019 

Let me cut to the quick: I have changed my vote on these particular cases because I now

believe that I got this wrong the first time around. 

I misunderstood an important aspect of the FTC’s authority, and then I repeated my 

misunderstanding to a wider audience. So I write to clear up this misunderstanding, to say thank 

you to the public commenters whose insightful contributions helped me to better understand 

these issues, and to explain why I have changed my vote on these matters. I now vote against 

approving these consent orders with Patriot Puck and Sandpiper/PiperGear, both brazen violators 

of the Federal Trade Commission Act’s prohibition against deceiving consumers by claiming a 

wholly imported product is “Made in U.S.A.” 

Last September, I voted in support of the FTC’s publishing for public comment the 

proposed consent orders that placed the offending companies and one executive under order but 

did not require admissions of liability or exact a financial cost. Notably, the FTC’s approach to 

these particular cases was consistent with the agency’s approach to all “Made in U.S.A.” cases

over recent decades and across administrations of both parties. In a concurring statement,1I

wrote that the companies and executive would be placed under order and therefore subject to 

civil penalties for any future deception or other violations of the order. I noted that these 

prospective penalties are quite big, that record-keeping requirements would tend to keep the 

companies honest, and that these types of orders had mostly kept previous “Made in U.S.A.” 

deceivers from re-offending. All of this remains true. 

I based my earlier vote on two interrelated factors: (1) the resolutions of these matters

were negotiated before the current set of Commissioners took office and (2) I did not believe that 

we had a legal basis to seek more aggressive monetary remedies. I therefore concluded that it 

would not be an efficient use of our limited resources to renegotiate these settlements with little

chance of better outcomes. Instead, I thought that it made sense to consider alternative 

approaches on a forward-looking basis. I wrote that we could look to pursue “additional 

remedies,” such as disgorgement of ill-gotten gains,2admissions of liability, and notice to

consumers, in future “cases in which consumers paid a clear premium” in terms of price. 

1 See Concurring Statement of Comm’r Slaughter, joined by Chairman Simons, In re Nectar Sleep, 

Sandpiper/PiperGear, and Patriot Puck (Sept. 12, 2018), 

https://www.ftc.gov/system/files/documents/public_statements/1407368/182_3038_nectar_sandpiper_patriot_rks_a

nd_jjs_concurring_statement_0.pdf.

2 Disgorgement is an equitable remedy that is distinct from the tool of civil penalties; the purpose of disgorgement is 

to put the lawbreaker in the same position that it would have been in without the lawbreaking, whereas the purpose 

of civil penalties is to punish and deter. It seems uncontroversial to note that disgorgement remedies would have the 

effect of deterring some lawbreaking since they would tend to reduce fraud’s upside, even though they do nothing to 

increase fraud’s downside. 
My earlier concurring statement contained no inaccuracy, but, in a follow-up tweet3

 and 

in testimony before the Senate,4 I expressly linked the notion of price premium with “our limited 

authority.” This was my misunderstanding: I had understood that the FTC had the authority to 

disgorge ill-gotten gains only where there was evidence of a price premium paid by consumers 

for American-made goods over cheaper imports.5 To be clear: Our authority has no such 

limitation. Instead, that consideration was prudential: The FTC historically has opted against 

expending large resources to pursue disgorgement remedies with first-time “Made in U.S.A.” 

violators. This strategy has favored bringing more companies under order to stop their violations 

over pursuing fewer, more resource-intensive cases that might impose on lawbreakers more 

severe consequences. 

This is a fair approach in light of other important consumer-protection priorities. I will 

continue to support it in appropriate cases. But it is reasonable to question, as Commissioner 

Chopra and many commenters have, whether more widespread compliance could be better 

achieved by the FTC’s seeking more aggressive remedies in egregious cases. I am persuaded 

that, for brazenly deceptive representations that a wholly imported product is “Made in U.S.A.,” 

consent orders without disgorgement or admissions fail to exact a meaningful cost from the 

lawbreaking company and its executives sufficient for effective general deterrence.

Reasonable minds may differ on particular litigation strategy, but in my view the two 

cases on which we vote today are so egregious that the usual first-time-violation consent order is 

insufficient. In particular, I am persuaded that we should seek disgorgement of ill-gotten gains 

and an admission of liability in these cases—and I understand that, if the companies refuse to 

agree to such terms, we would have to expend substantial resources for, and take on the risk 

associated with, litigation. But doing so would send an unmistakable message that there will be 

meaningful consequences for brazenly mislabeling wholly imported products as Americanmade—even the first time that a fraudster gets caught. 

Seeking disgorgement and admissions is one way to enhance our Made-in-U.S.A. 

enforcement program, but it is not the only one. I am always eager to see the Commission think 

creatively about the most effective use of its authorities, and the strategies that Commissioner 

Chopra has suggested, such as Made-in-U.S.A. rulemaking6

 to enable use of civil penalties or 

using section 5(m)(1)(B) of the FTC Act,7 are worth pursuing. They hold the promise of 

maximizing general deterrence while minimizing resource expenditures.

3 See Rebecca Kelly Slaughter (@RKSlaughterFTC), Twitter (Sept. 12, 2018, 1:14 p.m.),

https://twitter.com/RKSlaughterFTC/status/1039970526138183687.

4 See Fed. Trade Comm’n Oversight: Hearing Before the Subcomm. on Consumer Prot., Prod. Safety, Ins. & Data 

Safety of the S. Comm. on Commerce, Nov. 27, 2018, at 1:37:56 (“I would add that Commissioner Chopra’s point

about financial penalty authority is a well-taken one. . . . In order for us to get a monetary remedy right now, we

have to show a monetary harm—show a price premium and make that demonstration. That can be very difficult to

do.”), https://www.c-span.org/video/?c4791166/commissioner-slaughter-musa.

5 This misunderstanding was mine alone; Chairman Simons, who joined the statement, did not share it. See 

Concurring Statement of Chairman Simons, In re Sandpiper/PiperGear and Patriot Puck (Apr. 17, 2019). 

6 See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320933, 108 Stat. 1796,

2135 (1994), codified at 15 U.S.C. § 45a.

7 Commissioner Chopra explores these strategies in more detail in his statement. See Dissenting Statement of 

Comm’r Chopra, In re Sandpiper/PiperGear and Patriot Puck (Apr. 17, 2019). 
I read every public comment filed in response to the proposed consent orders, and I 

extend my thanks to all who took the time to write us. Even the single-sentence comments are 

useful in underscoring that deceptive claims of “Made in U.S.A.” are repugnant to consumers 

from all regions and ideologies.8 That this view is so widely and deeply held supports adding a 

corresponding measure of targeted enforcement resources to rooting out this pervasive deception. 

I am particularly grateful to the longer comments filed by consumer and industry groups that 

provided relevant case law and legal background.9 They make a compelling case not only that 

seeking disgorgement is within the FTC’s authority but also that doing so could be a strategic use 

of our scarce resources to promote truth in country-of-origin claims. With the aid of these richly 

sourced comments and further reflection on my part, I came to the view that we could and should 

seek disgorgement and other remedies even in cases of first-time violators when their violations 

are egregious.

Serving in this office is an immense privilege, one that I try my best to honor each day. 

An important part of my effort to do so is to keep an open mind, even after I have already voted 

and stated a view about a case, and to approach all my work with the humility that I will on 

occasion make the wrong call. I will strive to be forthright in these occasions and learn from my 

mistakes. The public-comment process is a vital mechanism for public officials to receive 

valuable information and perspectives, as was especially true here for me. I expect that in most 

cases my initial vote will not change but that still I will learn from the insightful comments that 

the public submits. I will continue to think critically about the important decisions that the 

Commission faces every day and make best use of all the information available to me, especially 

information that challenges my initial view.

 8 See, e.g., Cmt. of Concerned Citizens (Oct. 11, 2018), 

https://www.ftc.gov/system/files/documents/public_comments/2018/10/00003-155942.pdf. 9 See, e.g., Cmt. of Consumers Union (Oct. 12, 2018), 

https://www.ftc.gov/system/files/documents/public_comments/2018/10/00006-155952.pdf; Cmt. of All. for Am. 

Mfg. (Oct. 12, 2018), https://www.ftc.gov/system/files/documents/public_comments/2018/10/00005-155951.pdf.