UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

Office of Commissioner 

Noah Joshua Phillips 

Prepared Oral Statement of 

FTC Commissioner Noah Joshua Phillips 

Before the 

House Committee on Energy and Commerce 

Subcommittee on Consumer Protection and Commerce 

Hearing on “Transforming the FTC: Legislation to Modernize Consumer Protection” 

July 28, 2021 

Chair Schakowsky, Ranking Member Bilirakis, Members of the Subcommittee, thank 

you for the opportunity to appear before you. I’m honored to testify with my fellow 

Commissioners about the important work we do at the FTC.

1 I am glad the Subcommittee has 

decided to solicit a range of views on agency reform. 

[I’d also like to take a moment to thank the staff of the Edgartown Public Library for 

providing me with a quiet space and internet access so that I can participate today. I will be 

masked today to adhere to library policy.] 

The thoughtful proposals Members have made on agency reform deserve attention, in 

particular those, such as the REPORTS Act, designed to increase transparency into the 

Commission. In the last few weeks, the Commission has repeatedly changed policy direction 

without giving the public any real notice or right to be heard and, without any serious 

consideration, removed guidance from the public and the business community alike. And, by 

1 My comments today are my own and do not necessarily reflect the views of the Commission or my fellow 

Commissioners. 

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removing Commission oversight from antitrust and other investigations—as we recently did— 

we have reduced transparency within the agency. We can do better. 

As you consider agency reforms, I urge you to consider other ways in which the agency 

is changing course. 

The first big change is the Commission pivoting, without Congress, to regulate a great 

deal of the economy. Over the last few years, my colleagues have called for a bevy of new rules, 

mostly under the authorities we have.2 The President’s recent executive order contemplates our 

issuing major regulations concerning, among other things, pharmaceuticals, technology, labor, 

retail, and devices.3 Not all of the proposals in the executive order are bad, to be clear; but much 

of it would replace consumer-driven market forces with government-supervised regulation, the 

opposite of the competition. And much of that appears to be based on authority we simply do not 

possess. The Commission, however, is in a hurry to regulate. On July 1st, without input from the 

public, we adopted rules to enable us to promulgate regulations with less objectivity, less 

oversight, and less public input. The Commission majority is reducing what it calls “red tape” on 

the Commission—to impose more real red tape on American businesses, large and small. 

Well-crafted regulations can help consumers and businesses, but poor regulatory design 

can raise prices, stifle innovation, and reduce consumer choice. This was a lesson America 

learned the hard way decades ago. And when it comes to policy questions of great economic and 

2 See, e.g., Rohit Chopra and Lina M. Khan, The Case for “Unfair Methods of Competition” Rulemaking, 86 

University of Chicago Law Review 357 (2020), available at 

https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/ChopraKhan_Rulemaking_87UCLR357.pdf; 

Keynote Remarks of FTC Acting Chairwoman Rebecca Kelly Slaughter at the Consumer Federation of America’s 

Virtual Consumer Assembly (May 4, 2021), available at 

https://www.ftc.gov/system/files/documents/public_statements/1589607/keynote-remarks-acting-chairwomanrebecca-kelly-slaughter-cfa-virtual-consumer-assembly.pdf. 

3 Executive Order on Promoting Competition in the American Economy (July 9, 2021), available at 

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promotingcompetition-in-the-american-economy/. 

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political importance, my basic philosophy is that Congress—not the FTC—is the place to answer 

them. I believe the law reflects that fact. Privacy is a good example of a major policy question, 

and I commend Committee Ranking Member McMorris Rodgers and Subcommittee Ranking 

Member Bilirakis on their recent letter calling for privacy legislation and for the Administration 

to make it a priority. 

In adopting regulations, I hope we address clearly-defined problems, fashion rules 

designed to address them, and minimize the negative impacts on consumers and businesses. I 

hope we base our decisions on empirical evidence and input from all stakeholders, which is why 

I also support the goal of the RECS Act introduced by Congressman Bucshon [BOO-Shon], to 

ensure that our recommendations to Congress reflect similar analytical rigor. 

Another change I fear is moving away from the Commission’s historical commitment to 

combat fraud. 

Just a few weeks ago, this Subcommittee considered amendments to Section 13(b), 

following the Supreme Court’s decision in AMG Capital Management, LLC v. FTC.

4 As our 

testimony detailed, the fraud program has for decades done essential work to return money to 

victims of fraud. Companies, large and small, that engage in fraud can cost consumers their life 

savings, cumulatively billions of dollars in losses.5 In the past 5 years, the FTC returned $11.2 

4 See AMG Capital Mgmt., LLC v. FTC, No. 19-508, 593 U.S. ___, slip op. (Apr. 22, 2021), 

https://www.supremecourt.gov/opinions/20pdf/19-508_l6gn.pdf. AMG was an appeal by defendants from a 2018 

Ninth Circuit ruling in which the court re-affirmed its precedent interpreting Section 13(b) to allow the FTC to 

obtain monetary relief, a judgment that the Supreme Court reversed. See FTC v. AMG Capital Mgmt., LLC, 910 F.3d 

417 (9th Cir. 2018). 

5 In 2020 consumers reported losing over $3.3 billion to fraud. Consumer Sentinel Data Book 2020 at 4, available 

at https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book2020/csn_annual_data_book_2020.pdf. 

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billion in refunds to consumers that were victims of fraud.6 I am heartened that Congress has 

appropriated funds and passed laws to strengthen the fraud program, like the recent Covid-19 

Consumer Protection Act.7 I support efforts like HR 4483 to protect veterans and service 

members from fraud. Count me among those who believe that a well-crafted amendment to 

Section 13(b), with guardrails, will help serve consumers. 

Over the last few years, some of my colleagues have made comments to suggest that we 

should focus only on large companies.8 The Chair’s first public statement used the phrase 

“corporate abuse”.9 The fact is that many of the frauds we see are not perpetrated by large 

corporations. I hope these comments do not indicate a desire to turn away from fraud 

enforcement. Where big corporations violate the law, we absolutely should hold them to account. 

But, again, some of the wrongdoers that hurt Americans most happen not to be large 

corporations. We cannot lose sight of them. While enforcement against the robocallers, COVID19 scammers, and others like these may not generate headlines, it generates results, for 

consumers. While Section 19 is an imperfect tool, today it enables us to return money lost to 

fraudsters. I believe that the Commission should continue to commit resources to combatting 

practices, like fraud, that cause the most harm. I welcome legislation—like updating Section 

13(b)—that will further those efforts. 

Thank you, and I look forward to addressing your questions. 

6 See 

https://public.tableau.com/profile/federal.trade.commission#!/vizhome/Refunds_15797958402020/RefundsbyCase. 

7 Pub. L. No. 116-260, 134 Stat. 1182, Division FF, Title XIV, § 1401(b)(1). 

8 See, e.g., Prepared Opening Statement of Commissioner Rohit Chopra Before the United States Senate Committee 

on Commerce, Science, and Transportation, Hearing on “Strengthening the Federal Trade Commission’s Authority 

to Protect Consumers,” (April 20, 2021), available at https://www.ftc.gov/system/files/documents/publicstatements/1589172/final_chopra_opening_statement_for_senate_commerce_committee_20210420.pdf. 

9 See, Lina Khan Sworn in as Chair of the FTC (June 15, 2021) available at https://www.ftc.gov/news-events/pressreleases/2021/06/lina-khan-sworn-chair-ftc. 

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