UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

1-800 Contacts, Inc., 

 a corporation, 

Respondent

Docket No. 9372 

CONCURRING OPINION OF COMMISSIONER REBECCA KELLY SLAUGHTER

I strongly support the Commission’s decision and order. As explained in the Commission’s 

Opinion, the agreements between 1-800 Contacts and its online rivals to restrict advertising on 

search engine result pages harmed consumers and competition. I write separately to explain why 

this case was a worthwhile expenditure of Commission resources. Specifically, this case merited 

the Commission’s attention because of the importance of competition in online search bidding 

for both consumers and for competitive entry by online sellers of goods and services. The 

Commission’s Opinion also addresses Complaint Counsel’s allegation of harm to search engines 

in the form of depressed prices paid for search advertising. While I agree with the conclusion 

that the agreements at issue in this case constituted a type of illegal bid rigging, it was important 

for me to connect that conduct to consumer harm rather than harm to search engines alone. 

Complaint Counsel successfully demonstrated that consumers were harmed by the agreements in 

this case. Those agreements not only deprived consumers of information about alternative sellers 

of contact lenses, which is sufficient on its own to establish a violation of Section 5, but the 

evidence shows that consumers’ paid more for contact lenses as a result of 1-800 Contacts’ 

efforts to protect itself from lower-priced competitors. Consumers who searched online lost a 

critical opportunity to explore these alternative contact lenses sellers or take advantage of 1-800 

Contacts’ price match if they found such lower prices. These agreements increased the costs to

consumers across the country who need contact lenses to correct their vision. 

This case is important to competition and consumers – both because of the specific harm to 

contact lens purchasers and sellers and because of the precedent it sets as sponsored search 

results generated by bidding on a competitor’s brand name becomes an increasingly important 

avenue for businesses to break into online sales markets.1

 Online search bidding restriction may 

be a new frontier in advertising restraints, but it is just as pernicious as traditional restraints in 

 

1 See, e.g., Rani Molla, Amazon is Stuffing Its Search Results Pages With Ads, Recode, (Sept. 10, 2018), available at

https://www.recode.net/2018/9/10/17797720/amazon-is-stuffing-its-search-results-pages-with-ads. 
frustrating the role that advertising plays to benefit consumers in their search for the highest 

value products and services as recognized by the Supreme Court.2

A competitive marketplace should ensure that consumers get the best prices, choices, quality, 

and innovation. This case provides a good example of how the Commission should use its 

resources to attack conduct that robs consumers of competition that results in lower prices, and 

robs competitors of the ability to challenge a dominant player.

The Opinion also holds that the agreements consisted of a form of bid rigging that artificially 

depressed the price search engines received for online advertising. I agree with the legal

conclusion, expressed in the Opinion, but I write separately to note that I would not have

supported pursuing this case based on harm to search engines alone. The resources of the 

Commission are limited, and should generally be used to protect consumers, not large companies 

with substantial market share. Given the depth and precedential significance of the consumerfacing harm in this case, I support the Opinion and Order.

 2 Bates v. State Bar of Arizona, 433 U.S. 350, 364 (1977) (explaining that advertising “serves to inform the public of 

the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation 

of resources in a free enterprise system.”).