Dissenting Statement of Commissioner Christine S. Wilson 

Annual Regulatory Agenda

Matter No. P072104 

January 4, 2023 

I dissented from the Commission’s publication of its regulatory agenda in December 2021,1

given the majority’s plans for an avalanche of rulemaking on both the competition and consumer 

protection fronts.2

 I can confirm that the FTC’s Rule-a-Palooza is well under way. In 2022, the 

Commission proposed to issue six new rules,3 and to expand an existing one.4 

In my December 2021 dissent, I expressed concern about whether these proposed rules in the 

consumer protection arena would hew to our Congressionally authorized jurisdiction and remain 

tethered to the agency’s enforcement experience and subject matter expertise. Those concerns 

were well-founded. The Commercial Surveillance Advance Notice of Proposed Rulemaking 

(ANPRM) sought input on 95 questions and stated that the Commission is considering rules that 

would regulate everything from deceptive privacy promises and lax data security to the use of 

AI, employment discrimination, and civil rights. And the Junk Fees ANPRM proposes to address 

how prices are conveyed to consumers across virtually every sector of the economy. But Section 

18 of the FTC Act requires the agency to demonstrate the prevalence of deceptive and unfair 

practices, a significant hurdle to overcome when the topics of these rulemakings wander so far 

afield from our enforcement experience.

Last year’s Regulatory Agenda and statements from the majority in 2022 foreshadow rulemaking 

on competition issues, as well. As I have said elsewhere, I question whether the Commission 

possesses the requisite authority to promulgate substantive rules on “unfair methods of 

competition.”5 Moreover, I question the wisdom of doing so. 

I have long expressed concerns about the negative impacts of rulemaking. History teaches us that 

rules stifle innovation, increase costs, raise prices, limit choice, and decrease output, frequently 

1 FED. TRADE COMM’N, Statement of Regulatory Priorities at 2 (Dec. 10, 2021), 

https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/202110/Statement_3084_FTC.pdf.

2 Dissenting Statement of Commissioner Christine S. Wilson, Annual Regulatory Plan and Semi-Annual Regulatory 

Agenda (Dec. 10, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1598839/annual_regulatory_plan_and_se miannual_regulatory_agenda_wilson_final.pdf. 3 Trade Regulation Rule on Deceptive or Unfair Earnings Claims, 87 FR 13951 (Mar. 11, 2022); Trade Regulation 

Rule on Commercial Surveillance and Data Security, 87 FR 51273 (Aug. 22, 2022); Motor Vehicle Dealers Trade 

Regulation Rule, 87 FR 42012 (July 13, 2022); Trade Regulation Rule on Impersonation of Government and 

Businesses, 87 FR 62741 (Oct. 17, 2022); Trade Regulation Rule on Use of Reviews and Endorsements, 87 FR 

67424 (Nov. 8. 2022); Unfair or Deceptive Fees Trade Regulation Rule, 87 FR 67413 (Nov. 8. 2022).

4 Trade Regulation Rule on the Use Business Opportunities, ANPR, 16 CFR 437, available at: 

https://www.ftc.gov/legal-library/browse/federal-register-notices/16-cfr-part-437-trade-regulation-rule-use-businessopportunities-anpr 5 See Christine S. Wilson, Hey, I’ve Seen This One: Warnings for Competition Rulemaking at the FTC, Remarks for 

the Federalist Society “The Future of Rulemaking at the FTC” Event (July 8, 2020), 

https://www.ftc.gov/system/files/documents/public_statements/1591666/wilson_statement_back_to_the_future_of_r

ulemaking.pdf. My former colleague Commissioner Noah J. Phillips shared this view. Noah Joshua Phillips, 

Against Antitrust Regulation, AEI (Oct. 2022), https://www.aei.org/wp-content/uploads/2022/10/Against-AntitrustRegulation.pdf?x91208. 
harming the very parties they are intended to benefit.6

 In addition to my general concerns about 

expansive rulemaking, I have grave concerns about this administration’s approach to regulation. 

Recently, I have supported rulemaking initiatives firmly grounded in our law enforcement 

experience and engagement with stakeholders.7 These rules address areas in which hundreds of 

actions have demonstrated a prevalence of deceptive (and typically fraudulent) practices, and in 

which case-by-case enforcement has not been successful in deterring unlawful conduct. 

The Chair’s agenda, however, extends far beyond rules prohibiting blatantly deceptive or unfair

conduct. To further complicate matters, her regulatory initiatives all too often are driven not by 

the extensive enforcement expertise of our accomplished staff, but instead by a flood of advisors 

drawn from academia8

 or, worse, by narratives emanating from the White House.9 Staff with 

relevant expertise – those who will be tasked with implementing these initiatives – are consulted 

at the eleventh hour, if at all. All too frequently, I have scant time for consultation and review, 

and receive only limited staff analysis.

10 In short, I do not have sufficient confidence in either the 

6 Christine S. Wilson & Keith Klovers, The Growing Nostalgia for Past Regulatory Misadventures and the Risk of 

Repeating These Mistakes with Big Tech, 8 J. ANTITRUST ENF’T 10 (2019), 

https://academic.oup.com/antitrust/article/8/1/10/5614371; Remarks of Commissioner Christine S. Wilson at British 

Institute of International and Comparative Law, Remembering Regulatory Misadventures: Taking a Page from 

Edmund Burke to Inform Our Approach to Big Tech (June 28, 2019), 

https://www.ftc.gov/system/files/documents/public_statements/1531816/wilson_remarks_biicl_6-28-19.pdf; 

Dissenting Statement of Commissioner Christine S. Wilson Energy Labeling Rule, Comm’n Matter No. R611004 

(Oct. 22, 2019), 

https://www.ftc.gov/system/files/documents/public_statements/1551786/r611004_wilson_dissent_energy_labeling_r

ule.pdf. 7 Christine S. Wilson, Oral Remarks at Open Commission Meeting, Telemarketing Sales Rule (Apr. 28, 2022), 

https://www.ftc.gov/system/files/ftc_gov/pdf/R411001WilsonOpenCommissionMtg.pdf; Concurring Statement of 

Commissioner Christine S. Wilson, Advanced Notice of Proposed Rulemaking Concerning Earnings Claims (Feb. 

17, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/20220217_- 

_concurring_statement_of_cmmr_chrsitne_s_wilson_on_anpr_re_earnings_claims_r111033.pdf. I also recently 

voted yes on a staff recommendation to seek comment on expansion of the Commission’s existing Business 

Opportunity Rule to address similarly deceptive earnings claims. Press Release: FTC Explores Changes, Possible 

Expansion of the Business Opportunity Rule (Nov. 17, 2022), https://www.ftc.gov/news-events/news/pressreleases/2022/11/ftc-explores-changes-possible-expansion-its-business-opportunity-rule 8 Indeed, the Chair’s hiring practices have been subject to investigation by the FTC’s Inspector General. Office of 

Inspector General, FTC, “Audit of the Federal Trade Commission Unpaid Consultant and Expert Program,” OIG 

Report No. A-22-06 (Aug. 1, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/2022-08-

01_OIGauditreport_unpaidconsultants_FINAL.pdf. 9 Remarks by President Biden at the Third Meeting of the White House Competition Council (referencing many 

industries that do not fall within the FTC’s jurisdiction) (Sept. 26, 2022), https://www.whitehouse.gov/briefingroom/speeches-remarks/2022/09/26/remarks-by-president-biden-at-the-third-meeting-of-the-white-housecompetition-council/. 10 See Dissenting Statement of Commissioner Christine S. Wilson, Advance Notice of Proposed Rulemaking – Junk 

Fees (Oct. 20, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/commissioner-wilson-dissenting-statement-junkfees-anpr.pdf;Oral Remarks of Commissioner Christine S. Wilson at the Open Commission Meeting on July 21, 

2021, 8-11, https://www.ftc.gov/system/files/documents/ 

public_statements/1592366/commissioner_christine_s_wilson_oral_remarks_at_open_comm_mtg_final.pdf; see 

also Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson on the “Statement of the 

Commission on the Withdrawal of the Statement of Enforcement Principles Regarding ‘Unfair Methods of 

Competition’ Under Section 5 of the FTC Act” (July 9, 2021), https://www.ftc.gov/system/files/documents/ 

public_statements/1591710/p210100phillipswilsondissentsec5enforcementprinciples.pdf; Press Release, Fed. Trade 

Comm’n, FTC Rescinds 2015 Policy that Limited Its Enforcement Ability Under the FTC Act (July 1, 2021), 

https://www.ftc.gov/news-events/press-releases/2021/07/ftc-rescinds-2015-policy-limited-its-enforcement-
substance of the proposed rules or the processes the Chair will use to craft and launch them, 

leaving me unable to support her regulatory agenda. 

For these reasons, I dissent from the Annual Regulatory Agenda. 

abilityunder; Dissenting Statement of Commissioner Noah Joshua Phillips Regarding the Commission’s Withdrawal 

of the 1995 Policy Statement Concerning Prior Approval and Prior Notice Provisions in Merger Cases (July 21, 

2021), 

https://www.ftc.gov/system/files/documents/public_statements/1592398/dissenting_statement_of_commissioner_ph 

illips_regarding_the_commissions_withdrawal_of_the_1995.pdf;; Press Release, Fed. Trade Comm’n, FTC 

Rescinds 1995 Policy Statement that Limited the Agency’s Ability to Deter Problematic Mergers (July 21, 2021), 

https://www.ftc.gov/news-events/press-releases/2021/07/ftc-rescinds-1995policy-statement-limited-agencys-abilitydeter; Statement of Commissioner Christine S. Wilson Regarding the Announcement of Pre-Consummation 

Warning Letters (Aug. 9, 2021), https://www.ftc.gov/system/files/documents/ public_statements/1593969/preconsummation_warning_letters_statement_v11.pdf.