Federal Register / Vol. 89, No. 192 / Thursday, October 3, 2024 / Notices 80565 

56 See supra note 7. 

57 See Douglas Farrar, X, (Sept. 13, 2024), https:// 

x.com/DouglasLFarrar/status/ 

1834727643171733651 (‘‘FTC Chair Khan has won 

more than 90% of her lawsuits’’) (quoting remarks 

of Rep. Alexandria Ocasio-Cortez). 

58 In re Asbury, supra note 24, at 3. 

59 Id. at 4 (‘‘That a firm may break this cycle by 

litigating is no answer to my objection. For most 

small businesses—and many large ones—a 

Commission investigation is costly. Lawyers are 

expensive, and investigations sometimes last for 

years. Litigation may take many years more. The 

mere risk of a Commission investigation is coercive 

and can be enough to force some businesses to 

yield.’’). 

60 See Joint Dissenting Statement of Melissa 

Holyoak, Comm’r, Fed. Trade Comm’n, and Andrew 

N. Ferguson, Comm’r, Fed. Trade Comm’n, In re 

ExxonMobil Corp., FTC Matter No. 241 0004 (May 

1, 2024). 

shareholders, the consent is all upside: with 

the merger cleared, they will soon get paid. 

And for Chevron’s shareholders, the benefit 

is clear and the cost is minimal: a valuable 

asset in exchange for keeping one person off 

of the board of directors. 

The Commission majority and the 

Democratic politicians who urged them on 

will hail today’s Complaint and proposed 

order as a victory. Those politicians have 

loudly urged the Commission to block this 

merger, and today the Commission majority 

can pretend it delivered, even as it allows the 

merger to proceed.56 Fawning press coverage 

will surely follow—a nice bonus for the 

Democrats as voters head to the polls to pick 

the next President. The American public 

rightly loathes OPEC and has little affection 

for its perceived friends. Few apart from 

seasoned antitrust practitioners will look 

under the hood of the Commission’s antitrust 

theory. The Commission will tout this 

modest, coerced settlement as a ‘‘win’’ and 

add it to the list of ‘‘wins’’ it uses to calculate 

a supposed ‘‘90% win rate.’’ 57

But this settlement is not a victory for the 

rule of law. ‘‘A settlement extracted from an 

innocent party reveals much about the 

Commission’s power, but nothing about the 

law.’’ 58 The Commission’s power under the 

Hart-Scott-Rodino Act is considerable and 

coercive. We do not approve or forbid 

mergers, but we may sue to block them. 

Lawsuits are expensive and time-consuming, 

and the mere risk of an enforcement action 

can make an otherwise valuable transaction 

too costly to pursue.59 Our gatekeeping 

function therefore gives us the power to exact 

tolls on merging parties even if our legal 

theory is bunk.60 The risk, time, and expense 

associated with convincing a judge that the 

Commission’s theory is bunk is coercive 

enough that merging parties will pay for the 

Commission to go away. But such a 

settlement does not vindicate the rule of law. 

It is instead a sort of tax on mergers made 

possible by the fact that Congress has made 

the Commission a merger gatekeeper. 

Today, two merging companies pay a toll 

to pass through the Hart-Scott-Rodino gate. 

They do not pay the toll because section 7 

requires it. Nothing in section 7 requires Mr. 

Hess to stay off the Chevron board. They pay 

the toll because the Commission has 

threatened to make their lives difficult if they 

do not, and they have concluded that it is 

easier to pay than to resist. The Commission 

collects the toll and proclaims victory. But 

reducing antitrust enforcement to a pay-forpeace racket inflicts serious injury on the 

rule of law—and on the Commission’s 

credibility. 

I therefore respectfully dissent. 

[FR Doc. 2024–22874 Filed 10–2–24; 8:45 am] 

BILLING CODE 6750–01–P 

FEDERAL TRADE COMMISSION 

[File No. 232 3052] 

Rytr LLC; Analysis of Proposed 

Consent Order To Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement; 

request for comment. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

Federal law prohibiting unfair or 

deceptive acts or practices. The attached 

Analysis of Proposed Consent Order to 

Aid Public Comment describes both the 

allegations in the complaint and the 

terms of the consent order—embodied 

in the consent agreement—that would 

settle these allegations. 

DATES: Comments must be received on 

or before November 4, 2024. 

ADDRESSES: Interested parties may file 

comments online or on paper by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Please write ‘‘Rytr LLC; File No. 

232 3052’’ on your comment and file 

your comment online at https://

www.regulations.gov by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, please mail your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW, Mail 

Stop H–144 (Annex R), Washington, DC 

20580. 

FOR FURTHER INFORMATION CONTACT: 

Division of Advertising Practices, 

Bureau of Consumer Protection, Federal 

Trade Commission, 600 Pennsylvania 

Avenue NW, Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

Commission Act, 15 U.S.C. 46(f), and 

FTC Rule § 2.34, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

consent agreement containing a consent 

order to cease and desist, having been 

filed with and accepted, subject to final 

approval, by the Commission, has been 

placed on the public record for a period 

of 30 days. The following Analysis to 

Aid Public Comment describes the 

terms of the consent agreement and the 

allegations in the complaint. An 

electronic copy of the full text of the 

consent agreement package can be 

obtained at https://www.ftc.gov/newsevents/commission-actions. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before November 4, 2024. Write ‘‘Rytr 

LLC; File No. 232 3052’’ on your 

comment. Your comment—including 

your name and your State—will be 

placed on the public record of this 

proceeding, including, to the extent 

practicable, on the https://

www.regulations.gov website. 

Because of heightened security 

screening, postal mail addressed to the 

Commission will be subject to delay. We 

strongly encourage you to submit your 

comments online through the https://

www.regulations.gov website. If you 

prefer to file your comment on paper, 

write ‘‘Rytr LLC; File No. 232 3052’’ on 

your comment and on the envelope, and 

mail your comment to the following 

address: Federal Trade Commission, 

Office of the Secretary, 600 

Pennsylvania Avenue NW, Mail Stop 

H–144 (Annex R), Washington, DC 

20580. 

Because your comment will be placed 

on the publicly accessible website at 

https://www.regulations.gov, you are 

solely responsible for making sure your 

comment does not include any sensitive 

or confidential information. In 

particular, your comment should not 

include sensitive personal information, 

such as your or anyone else’s Social 

Security number; date of birth; driver’s 

license number or other State 

identification number, or foreign 

country equivalent; passport number; 

financial account number; or credit or 

debit card number. You are also solely 

responsible for making sure your 

comment does not include sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, your comment should not 

include any ‘‘trade secret or any 

commercial or financial information 

which . . . is privileged or 

confidential’’—as provided by section 

6(f) of the FTC Act, 15 U.S.C. 46(f), and 

FTC Rule § 4.10(a)(2), 16 CFR 

4.10(a)(2)—including competitively 

sensitive information such as costs, 

sales statistics, inventories, formulas, 

patterns, devices, manufacturing 

processes, or customer names. 

Comments containing material for 

which confidential treatment is 

requested must be filed in paper form, 

must be clearly labeled ‘‘Confidential,’’ 

and must comply with FTC Rule 

§ 4.9(c). In particular, the written 

request for confidential treatment that 


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80566 Federal Register / Vol. 89, No. 192 / Thursday, October 3, 2024 / Notices 

1See, e.g., Dissenting and Concurring Statement 

of Commissioner Melissa Holyoak, In re Coulter 

Motor Company, LLC, FTC No. 2223033, at 3 n.17 

(Aug. 15, 2024) (‘‘It is no coincidence that the 

Commission has asserted its novel ‘unfair 

discrimination’ authority only outside the scrutiny 

of courts and in the context of consent orders.’’), 

https://www.ftc.gov/system/files/ftc_gov/pdf/ 

commissioner-holyoak-statement-re-coulter-8-15- 

24.pdf; see also Statement of Commissioner Melissa 

Holyoak, In re Asbury Automotive Group—McDavid 

Group; Matter No. 2223135, at 1 n.1 (Aug. 16, 2024), 

https://www.ftc.gov/system/files/ftc_gov/pdf/ 

commissioner-holyoak-statement-re-asbury8-16- 

24.pdf. 

2See Dissenting Statement of Commissioner 

William E. Kovacic, In re Negotiated Data 

Solutions, LLC, File No. 051–0094, at 3 (Jan. 23, 

2008) (‘‘The prospect of a settlement can lead one 

to relax the analytical standards that ordinarily 

would discipline the decision to prosecute if the 

litigation of asserted claims was certain or likely.’’), 

https://www.ftc.gov/sites/default/files/documents/ 

cases/2008/01/080122kovacic.pdf. 

3Cf. Concurring and Dissenting Statement of 

Commissioner Melissa Holyoak, Social Media and 

Video Streaming Services Staff Report, Matter No. 

P205402, at 4 (Sept. 19, 2024), https://www.ftc.gov/ 

system/files/ftc_gov/pdf/commissioner-holyoakstatement-social-media-6b.pdf. 

accompanies the comment must include 

the factual and legal basis for the 

request and must identify the specific 

portions of the comment to be withheld 

from the public record. See FTC Rule 

§ 4.9(c). Your comment will be kept 

confidential only if the General Counsel 

grants your request in accordance with 

the law and the public interest. Once 

your comment has been posted on the 

https://www.regulations.gov website—as 

legally required by FTC Rule § 4.9(b)— 

we cannot redact or remove your 

comment from that website, unless you 

submit a confidentiality request that 

meets the requirements for such 

treatment under FTC Rule § 4.9(c), and 

the General Counsel grants that request. 

Visit the FTC website at https://

www.ftc.gov to read this document and 

the news release describing the 

proposed settlement. The FTC Act and 

other laws the Commission administers 

permit the collection of public 

comments to consider and use in this 

proceeding, as appropriate. The 

Commission will consider all timely 

and responsive public comments it 

receives on or before November 4, 2024. 

For information on the Commission’s 

privacy policy, including routine uses 

permitted by the Privacy Act, see 

https://www.ftc.gov/site-information/ 

privacy-policy. 

Analysis of Proposed Consent Order To 

Aid Public Comment 

The Federal Trade Commission 

(‘‘Commission’’) has accepted, subject to 

final approval, an agreement containing 

a consent order from Rytr LLC (‘‘Rytr’’). 

The proposed consent order (‘‘proposed 

order’’) has been placed on the public 

record for 30 days for receipt of 

comments from interested persons. 

Comments received during this period 

will become part of the public record. 

After 30 days, the Commission will 

again review the agreement and the 

comments received and will decide 

whether it should withdraw from the 

agreement and take appropriate action 

or make final the agreement’s proposed 

order. 

This matter involves Rytr’s marketing 

and offering for sale an artificial 

intelligence ‘‘writing assistant’’ service 

intended to generate unlimited content 

for consumer and customer reviews and 

testimonials. Subscribers to the Rytr 

service, which uses generative artificial 

intelligence, can quickly and easily 

generate unlimited written content for a 

variety of ‘‘Use Cases.’’ One of these Use 

Cases was the ‘‘Testimonial & Review’’ 

Use Case, which Rytr began offering in 

April 2021. 

According to the Commission’s 

proposed complaint, the review 

generation service generated reviews 

that would almost certainly be false for 

the users who copied them and 

published them online. In many 

instances, the resulting reviews featured 

details that would deceive potential 

consumers deciding to purchase the 

service or product described. The 

proposed complaint asserts that at least 

some of Rytr’s subscribers utilized the 

service to produce hundreds and, in 

some cases, thousands of reviews. 

The proposed complaint alleges that 

Rytr provided the means and 

instrumentalities to its users and 

subscribers to generate written content 

for consumer reviews that was false and 

deceptive. The complaint also alleges 

that Rytr engaged in an unfair business 

practice by offering a service that was 

intended to quickly generate unlimited 

content for consumer reviews and 

created false and deceptive written 

content for consumer reviews. 

The proposed order contains 

provisions designed to prevent Rytr 

from engaging in these and similar acts 

and practices in the future. Provision I 

bans Rytr from advertising, promoting, 

marketing, offering for sale, or selling 

any service dedicated to or advertised, 

promoted, or offered as generating 

consumer or customer reviews or 

testimonials. 

Provisions II through VI of the 

proposed order contain reporting and 

compliance provisions. Provision II 

mandates that Rytr acknowledge receipt 

of the order, distribute the order to 

principals, officers, and certain 

employees and agents, and obtain 

signed acknowledgments from them. 

Provision III requires Rytr to submit 

compliance reports to the Commission 

one year after the order’s issuance and 

submit notifications when certain 

events occur. Under Provision IV, Rytr 

must create certain records for 20 years 

and retain them for five years. Provision 

V provides for the FTC’s continued 

compliance monitoring of Rytr’s activity 

during the order’s effective dates. 

Finally, Provision VI provides the 

effective dates of the order, including 

that, with exceptions, the order will 

terminate in 20 years. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed order. It is not intended to 

constitute an official interpretation of 

the complaint or proposed order, or to 

modify in any way the proposed order’s 

terms. 

By direction of the Commission, 

Commissioners Holyoak and Ferguson 

dissenting. 

Joel Christie, 

Acting Secretary. 

Dissenting Statement of Commissioner 

Melissa Holyoak Joined by 

Commissioner Andrew N. Ferguson 

As I have suggested recently in other 

contexts, the Commission should steer 

clear of using settlements to advance 

claims or obtain orders that a court is 

highly unlikely to credit or grant in 

litigation.1 Outside that crucible, the 

Commission may more readily advance 

questionable or misguided theories or 

cases.2 Nevertheless, private parties 

track such settlements and, fearing 

future enforcement, may alter how they 

act due to a complaint’s statement of the 

alleged facts, its articulation of the law, 

or how a settlement order constrains a 

defendant’s conduct.3 In all industries, 

but especially evolving ones like 

artificial intelligence (AI), misguided 

enforcement can harm consumers by 

stifling innovation and competition. I 

fear that will happen after today’s case, 

which is another effort by the Majority 

to misapply the Commission’s 

unfairness authority under section 5 

beyond what the text authorizes. 

Relatedly, I believe the scope of today’s 

settlement is unwarranted based on the 

facts of this case. I respectfully dissent. 

Some background first. Rytr provides 

AI products that generate draft written 

content for 43 ‘‘use cases,’’ which are 

tailored written outputs intended for 

specific purposes, like ‘‘Email,’’ 

‘‘Product Description,’’ ‘‘Blogs,’’ 

‘‘Articles,’’ or ‘‘Story Plot,’’ among 


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4Compl. ¶¶ 2, 4. 

5See id. ¶ 4. The complaint does not allege that 

Rytr tracks or knows whether or how user-directed 

draft content is ultimately used. 

6See id. ¶¶ 2, 5. 

7See Use Cases, Rytr, available at https://rytr.me/ 

use-cases/ (last visited Sept. 24, 2024). 

8Compl. ¶ 6; see also Languages, Rytr (‘‘Rytr 

supports 30+ languages’’), available at https://

help.rytr.me/knowledge-base/languages (last visited 

Sept. 24, 2024). 

9See id. ¶ 6. 

10The complaint’s treatment of Rytr’s product 

seems implausible given Rytr’s product design. If 

Rytr’s intent was that drafts be posted blindly, why 

would Rytr have given users up to three ‘‘variant’’ 

drafts to consider and compare? See id. 

11See id. ¶ 13. The complaint does not allege 

whether there were users that paid for Rytr’s 

‘‘unlimited’’ draft outputs across all Rytr’s use cases 

but who generated comparatively fewer draft 

reviews than the volumes the complaint specifies. 

For example, it is unclear whether certain users 

with access to unlimited outputs generated high 

volumes of draft emails or blog posts, and also 

drafted some reviews. 

12 In general, the complaint also does not address 

exactly how much time passed as users generated 

drafts. Id. For example, for the 630 subscribers 

generating over 100 draft reviews, it is unclear 

whether those reviews were spaced out over 

months or years. 

13 Id. ¶¶ 2, 5. 

14 Id. ¶ 14. 

15 15 U.S.C. 45(n). 

16Compl. ¶ 17. 

17 Instead, the complaint alleges that drafts were 

‘‘detailed’’ and contain ‘‘specific, often material 

details that have no relation to a user’s input,’’ 

making it almost certain the drafts would ‘‘be false 

for the users who copy the generated content and 

publish it online.’’ Id. ¶ 8. The complaint also 

provides several examples of users that generated 

high volumes of drafts, including (apparently) a 

business, that seem likely to have been fake if used. 

Id. ¶ 13. But again, the complaint alleges no facts 

showing any such draft—let alone an unmodified 

draft—ever reached consumers. 

18Cf. In re International Harvester Co., 104 F.T.C. 

949, 1070, 1073 (1984) (unfairness statement) 

(‘‘First of all, the injury must be substantial. The 

Commission is not concerned with . . . merely 

speculative harms.’’). 19Compl. ¶ 7. 20 Id. ¶ 14 (explaining ‘‘[c]onsumers rely on 

reviews for fair and accurate information about 

products and services’’). 21 It is undoubtedly true that ‘‘[h]onest 

competitors who do not post fake reviews can lose 

sales to businesses that do . . . .’’ Id. But honest 

competitors, whose customers may have used this 

tool to post reviews they might not have otherwise, 

would also benefit from the additional reviews Rytr 

may have enabled. 

22 Id. ¶ 10. 

others.4 Users can review and manually 

copy, paste, and modify the draft 

content Rytr’s products generate.5 Rytr 

gives all users access to outputs from all 

43 types of use cases, but certain paying 

subscribers can generate unlimited 

output from all of them.6 As alleged in 

the complaint, the ‘‘Testimonial & 

Review’’ feature, which Rytr has 

stopped offering,7 generated draft 

consumer reviews based on a user’s 

inputs. Subscribers would provide 

descriptive keywords, phrases, or titles, 

as well as choose the output’s ‘‘desired 

tone’’ and level of ‘‘creativity,’’ and 

which of dozens of languages to draft 

in.8 Subscribers could opt to receive up 

to three ‘‘variant’’ drafts at a time for 

comparison.9 The complaint assumes 

users mechanically posted consumer 

reviews from Rytr’s drafts without 

reviewing or modifying them for 

accuracy. In other words, the complaint 

effectively treats draft outputs as final 

reviews—reviews that users posted 

without scrutiny.10 The complaint 

suggests Rytr did not monitor, or 

provide feedback on, the content of 

automated drafts. The complaint quotes 

several draft reviews and describes 

others. Finally, the complaint alleges 

that 24 subscribers each generated over 

10,000 draft reviews; 114 subscribers 

each generated over 1,000 draft reviews; 

and 630 subscribers each generated over 

100 draft reviews.11

Critically, the complaint does not 

allege that users actually posted any 

draft reviews.12 Since the Commission 

has no evidence that a single draft 

review was posted, the complaint 

centers on alleging speculative harms 

that may have come from subscribers 

with access to unlimited output from 

across Rytr’s use cases, which included 

draft reviews.13 And the complaint 

asserts the review tool in particular had 

‘‘no or de minimis reasonable, legitimate 

use,’’ and concludes that a function 

enabling unlimited reviews with limited 

user input, which could generate 

‘‘detailed and genuine-sounding 

reviews,’’ was likely to ‘‘only . . . 

facilitate subscribers posting fake 

reviews . . . to deceive consumers.’’ 14

Under the FTC Act, an act or practice 

is unfair if it ‘‘causes or is likely to cause 

substantial injury to consumers which is 

not reasonably avoidable by consumers 

themselves and not outweighed by 

countervailing benefits to consumers or 

to competition.’’ 15 In relevant part, the 

complaint alleges that ‘‘[Rytr] offered a 

service intended to quickly generate 

unlimited content for consumer 

reviews’’; that it ‘‘created false and 

deceptive written content for consumer 

reviews’’; and that any injury from 

Rytr’s practices was ‘‘not outweighed by 

countervailing benefits to consumers or 

competition.’’ 16

As a threshold matter, I am skeptical 

there is a likelihood of substantial injury 

in this case, based on the facts pled, 

from Rytr’s offering unlimited drafts as 

part of a suite of over forty generative 

AI offerings. For one thing, there is no 

concrete allegation that any of the draft 

content generated in response to users’ 

prompts was itself false or inaccurate.17

And even if there were a question about 

the drafts generated by Rytr, the 

complaint makes no allegation that any 

drafts were ever posted online. To 

satisfy the substantial injury prong of 

unfairness therefore, the complaint 

assumes, but does not allege facts 

showing, that all users mechanically 

posted drafts without modifying them to 

refine potential inaccuracies regarding 

the underlying product and the user’s 

experience with the product. If there 

were in fact a likelihood of substantial 

injury, presumably the complaint could 

allege at least one example where 

particular content Rytr generated was 

untruthful and was actually posted to 

reach consumers. Yet it does not. 

Unfairness requires proof—not 

speculation—of harm.18

Most significantly, though, by 

banning Rytr’s user review service the 

complaint fails to weigh the 

countervailing benefits Rytr’s service 

offers to consumers or competition. To 

start with the obvious, and as the 

complaint itself describes, Rytr’s tool 

generated ‘‘reviews quickly and with 

little user effort.’’ 19 It is generally a 

feature, not a bug, when a new tool 

helps users save time and achieve their 

goals with less work. Generative AI is 

no exception. In fact, much of the 

promise of AI stems from its remarkable 

ability to provide such benefits to 

consumers using AI tools. And as 

today’s complaint accurately 

acknowledges, consumers rely on 

reviews to make decisions in the 

marketplace.20 If Rytr’s tool helped 

users draft reviews about their 

experiences that they would not have 

posted without the benefit of a drafting 

aid, consumers seeing their reviews 

benefitted, too. There would be similar 

benefit to competition.21

The complaint fails to account for 

other potential benefits that are less 

obvious. When it comes to AI, it is 

arguably a feature of the service that 

draft reviews may not fit the user’s 

experience in their draft form. As with 

any draft document, what’s not 

included in a final version can still 

create value if the initial draft prompts 

a new line of thought. For example, 

perhaps someone reviewing dog 

shampoo might not have thought to 

mention a shampoo’s effect on shedding 

absent the prompt of an AI-generated 

initial draft.22 But on reading that draft, 

perhaps the consumer recalls their pet’s 

shedding has actually increased, and 

they modify their review accordingly— 

helping to flesh out their review and 

better inform interested readers of 

downsides of the product. Part of 

generative AI’s promise is its ability to 

suggest new lines of thought that may 


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23Even if a subscriber only chose to use the 

drafting tool for reviews, there is no allegation that 

subscribers could buy access only to unlimited 

drafting for reviews—undercutting the complaint’s 

suggestion that Rytr ‘‘intended’’ this particular 

offering, on its own, ‘‘to quickly generate unlimited 

content for consumer reviews.’’ See id. ¶ 17. 

24 Id. ¶ 14. 

25 Dissenting Statement of Commissioner Andrew 

N. Ferguson, Joined by Commissioner Melissa 

Holyoak, In the Matter of Rytr LLC, Matter No. 

2323052 (Sept. 25, 2024). 

26Cf. Anixter v. Home-Stake Production Co., 77 

F.3d 1215, 1225 (10th Cir. 1996); see also In re Shell 

Oil Co., 128 F.T.C. 749, 764 (1999) (majority 

statement) (‘‘It is well settled law that the originator 

is liable if it passes on a false or misleading 

representation with knowledge or reason to expect 

that consumers may possibly be deceived as a 

result.’’) (citing Regina Corp. v. FTC, 322 F.2d 765 

768 (3d Cir. 1963) (affirming liability under means 

and instrumentalities theory where defendant 

distributed its own misrepresentative price lists that 

were used, in turn, to deceive consumers)); id. at 

766 (Commissioner Swindle, dissenting) (‘‘Means 

and instrumentalities is a form of primary liability, 

and a respondent is primarily liable only for its own 

misrepresentations to consumers.’’). 

27Users, not Rytr, chose any given review’s tone 

(e.g., ‘‘critical’’ or ‘‘cautionary’’ or ‘‘convincing,’’ 

etc.). Compl. ¶ 6. Users, not Rytr, decided whether 

or not the draft review of a particular product 

would be favorable or not. Id. And users, not Rytr, 

decided whether to revise, or ultimately post, any 

given draft. See id. 

28See id. ¶ 8. 

29Peerless Prods., Inc. v. FTC, 284 F.2d 825, 826 

(7th Cir. 1960) (affirming Commission’s findings 

that petitioners’ punchboard products were an 

unlawful ‘‘means of and instrumentalities for 

engaging in unfair acts’’ where the punchboards 

were ‘‘designed and used primarily for the 

distribution of merchandise by lottery’’). 

30Cf. Concurring and Dissenting Statement of 

Commissioner Melissa Holyoak, Social Media and 

Video Streaming Services Staff Report, supra note 

3, at 18–19. 

1 In re Rytr LLC, Complaint (‘‘Complaint’’) & 

Decision and Order (‘‘Order’’). 

2 15 U.S.C. 45(a). 

3Complaint ¶ 15–16. 

4 In this statement, I discuss the Commission’s 

charge of deceptive conduct against Rytr. I also join 

Commissioner Holyoak’s dissent ably disposing of 

the Complaint’s charge of unfair conduct. 

Dissenting Statement of Commissioner Melissa 

Holyoak, In re Rytr, LLC (Sept. 25, 2024). 

never have occurred to a user in the first 

place. But recognizing such benefits 

here requires treating Rytr’s product 

accurately—as a drafting aid. The 

complaint also fails to grapple with how 

Rytr offered unlimited outputs across a 

suite of over 40 products. Given 

generative AI’s manifold applications, 

there may be significant benefit to 

consumers and competition when a 

company bundles its offerings and their 

features so that users do not bump up 

against word restrictions or character 

counts.23 The complaint today does not 

account for or attempt to weigh such 

benefits. Instead, it baldly alleges there 

are ‘‘no legitimate benefits’’ from Rytr’s 

service.24 That is mistaken based on the 

facts pled, and a misapplication of our 

unfairness authority. 

Such observations about 

countervailing benefits lead to my 

concern with the scope of today’s order. 

Even if the Commission adequately pled 

a law violation here, the Commission’s 

order goes too far in its ban on Rytr’s 

providing any review or testimonial 

service. The complaint alleges that 

Rytr’s service was potentially misused 

by users to create misleading reviews— 

not that the neutral service itself is a 

source of harm. Banning products that 

have useful features but have the 

potential to be misused is not consistent 

with the Commission’s unfairness 

authority. Nor is it consistent with a 

legal environment that promotes 

innovation. AI is a developing industry. 

It has vast potential. We should take 

care not to squelch it by suggesting that 

merely providing draft content that 

could be used unlawfully is wrong. 

Finally, I also share Commissioner 

Ferguson’s views regarding the 

complaint’s ‘‘means and 

instrumentalities’’ claim.25 I write 

separately to emphasize my concerns for 

imposing primary liability under a 

means and instrumentalities claim, 

where there is no allegation that Rytr 

itself made misrepresentations. The 

‘‘critical element’’ for primary liability 

‘‘is the existence of a representation, 

either by statement or omission, made 

by the defendant . . . .’’ 26 The 

complaint does not allege facts showing 

that the draft outputs were 

misrepresentations, much less that such 

draft outputs were Rytr’s 

misrepresentations.27 Indeed, as the 

complaint alleges, a review can also be 

deceptive if the user represents they 

experienced the product when they 

never did.28 But such ‘‘false’’ reviews 

would also not be misrepresentations 

made by Rytr. 

In addition, the means and 

instrumentality claim cannot be 

sustained on the theory that Rytr’s AI 

service was somehow inherently unfair 

or deceptive.29 Treating Rytr’s neutral 

drafting tool as inherently unfair or 

deceptive will have deleterious 

consequences for AI products generally. 

Today’s complaint suggests to all 

cutting-edge technology developers that 

an otherwise neutral product used 

inappropriately can lead to liability— 

even where, like here, the developer 

neither deceived nor caused injury to a 

consumer. 

We must protect consumers through 

robust enforcement. Indeed, the 

Commission is at its best when it does 

so. But we must also think carefully 

about the potential harms to consumers 

and innovation that attend misguided 

enforcement.30 Today’s misguided 

complaint and its erroneous application 

of section 5 will likely undermine 

innovation in the AI space. I therefore 

respectfully dissent. 

Dissenting Statement of Commissioner 

Andrew N. Ferguson Joined by 

Commissioner Melissa Holyoak 

The Commission today issues an 

administrative complaint and accepts a 

proposed consent agreement with Rytr 

LLC (‘‘Rytr’’).1 Rytr has created and 

markets a package of over 40 generative 

artificial intelligence (‘‘AI’’) tools with a 

variety of uses, from writing essays to 

creating poetry and music lyrics. One of 

these tools allowed users to generate 

consumer reviews based on prompts 

provided by the user. For having offered 

this tool, the Commission accuses Rytr 

of violating section 5 of the Federal 

Trade Commission Act 2 by furnishing 

its users with the ‘‘means and 

instrumentalities’’ to deceive 

consumers.3 The Commission reasons 

that a business could use Rytr’s tool to 

create false or deceptive consumer 

reviews that the business could then 

pass off as authentic reviews in 

violation of section 5. Rytr has agreed to 

settle the case by promising not to offer 

similar functionality in the future. 

I dissent 4 from the filing of the 

complaint and consent agreement 

because I do not have reason to believe 

that Rytr violated section 5, and because 

I do not believe filing is in the public 

interest. The Commission’s theory is 

that section 5 prohibits products and 

services that could be used to facilitate 

deception or unfairness because such 

products and services are the means and 

instrumentalities of deception and 

unfairness. Treating as categorically 

illegal a generative AI tool merely 

because of the possibility that someone 

might use it for fraud is inconsistent 

with our precedents and common sense. 

And it threatens to turn honest 

innovators into lawbreakers and risks 

strangling a potentially revolutionary 

technology in its cradle. 

I 

Rytr is a generative AI toolkit 

designed to help users write and edit 

text. Rytr markets its offering as 

including more than 40 different tools, 

which it calls ‘‘use cases,’’ that generate 

draft emails, text messages, letters, 

advertisements, product descriptions, 

blogs, articles, poems, song lyrics, 


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5Complaint ¶ 4; Use Cases, Rytr (last visited Sept. 

11, 2024), https://rytr.me/use-cases/. 

6The complaint contains a screenshot of the form 

for the Testimonial & Review use case. Complaint 

¶ 6. The Rytr website also shows what the forms for 

the various use cases look like. Use Cases, Rytr (last 

visited Sept. 11, 2024), https://rytr.me/use-cases/ 

(click on a use case to see the form for that use 

case). 

7Complaint ¶ 4. 

8 Ibid. 

9 Ibid. 

10 Id. ¶ 5. 

11 Id. ¶ 6. 

12 Id. ¶ 8. 

13 Id. ¶ 15. 

14 Id. ¶ 16. 

15 15 U.S.C. 45(a). 

16 FTC v. Moses, 913 F.3d 297, 306 (2d Cir. 2019) 

(quotation marks omitted); accord FTC v. 

Stefanchik, 559 F.3d 924, 928 (9th Cir. 2009) 

(similar); POM Wonderful, LLC v. FTC, 777 F.3d 

478, 490 (D.C. Cir. 2015) (similar); FTC v. Freecom 

Commc’ns, Inc., 401 F.3d 1192, 1203 (10th Cir. 

2005) (similar). 

17 FTC v. Cyberspace.com, 453 F.3d 1196, 1201 

(9th Cir. 2006). 

18 FTC v. Tashman, 318 F.3d 1273, 1277 (11th 

Cir. 2003). 

19 258 U.S. 483, 490–91 (1922). 

20 Id. at 492–93. 

21 Ibid. 

22 In re Litton Indus., Inc., 97 F.T.C. 1, 46–47 

(1981); see also, e.g., FTC v. Magui Publishers, Inc., 

9 F.3d 1551, 1993 WL 430102, at *4 (9th Cir. 1993) 

(unpublished) (‘‘It is well established that one who 

puts into the hands of others the means by which 

such others may deceive the public is equally as 

responsible for the resulting deception.’’); C. 

Howard Hunt Pen Co. v. FTC, 197 F.2d 273, 281 

(3d Cir. 1952) (‘‘One who places in the hands of 

another a means of consummating a fraud or 

competing unfairly in violation of the Federal Trade 

Commission Act is himself guilty of a violation of 

the Act.’’); Waltham Watch Co. v. FTC, 318 F.2d 28, 

32 (7th Cir. 1963) (‘‘Those who put into the hands 

of others the means by which they may mislead the 

public, are themselves guilty of a violation of 

Section 5 of the Federal Trade Commission Act.’’). 

23 In re Shell Oil Co., 128 F.T.C. 749, 764 (1999). 

24See, e.g., Gellman v. FTC, 290 F.2d 666, 667– 

68 (8th Cir. 1961) (collecting cases); Peerless Prods., 

Inc. v. FTC, 284 F.2d 825, 826 (7th Cir. 1960); James 

v. FTC, 253 F.2d 78, 80 (7th Cir. 1958); Globe 

Cardboard Novelty Co. v. FTC, 192 F.2d 444, 446 

(3d Cir. 1951); Chas. A. Brewer & Sons v. FTC, 158 

F.2d 74, 77 (6th Cir. 1946); FTC v. F.A. Martoccio 

Co., 87 F.2d 561, 564 (8th Cir. 1937). 

25See, e.g., Magpui, 1993 WL 430102, at *4; Int’l 

Art Co. v. FTC, 109 F.2d 393, 397 (7th Cir. 1940). 

26See, e.g., Regina Corp. v. FTC, 322 F.2d 765, 

768 (3d Cir. 1963) (supplier’s conveying of a 

Continued 

business pitches, and job descriptions.5

To generate content, the user selects a 

use case and fills out a form asking for 

the parameters of the text to be 

generated, such as the language, tone, 

creativity level, and the basic idea 

governing the document (depending on 

the use case, the business idea, the idea 

for a song, a description of the job role, 

and so forth).6 Rytr’s generative AI 

system processes the information and 

produces a document in the number of 

variants requested by the user. 

Rytr offers both free and paid versions 

of its writing tool. The free version 

substantially limits the monthly 

character count.7 For $9 per month (or 

$90 per year), a user can generate up to 

100,000 characters.8 For $29 per month 

(or $290 per year), the user can generate 

unlimited content.9 A user does not 

purchase subscriptions for particular 

use cases. Rather, a single subscription 

gives the user access to all of Rytr’s use 

cases.10

Until recently, one of Rytr’s use cases 

was ‘‘Testimonial & Review.’’ This use 

case permitted a user to generate 

product reviews by entering a 

description, some keywords, or a 

product title.11 Nothing prevented a 

user with a full subscription from using 

the tool to generate unlimited reviews of 

multiple products, or of a single 

product. 

The Commission alleges that this use 

case ‘‘generates detailed reviews that 

contain specific, often material details 

that have no relation to the user’s 

input’’; that such reviews ‘‘would 

almost certainly be false’’; and that, if 

such a review were ‘‘publish[ed] . . . 

online,’’ it ‘‘would deceive potential 

consumers deciding to purchase the 

service or product described’’ in 

violation of section 5.12 The Complaint 

does not identify a single Rytr-generated 

review published anywhere by anyone, 

much less a false review that violates 

section 5. It nevertheless concludes that 

Rytr ‘‘has furnished its users and 

subscribers with the means to generate 

written content for consumer reviews 

that is false and deceptive.’’ 13

‘‘[F]urnishing others with the means 

and instrumentalities to engage in’’ 

deception, the Commission declares, is 

a section 5 violation.14

II. A 

Section 5 prohibits ‘‘deceptive acts or 

practices.’’ 15 ‘‘The [Commission] must 

show three elements to prove a 

deceptive act or practice in violation of 

Section 5(a)(1): [1] a representation, 

omission, or practice, that [2] is likely 

to mislead consumers acting reasonably 

under the circumstances, and [3], the 

representation, omission, or practice is 

material.’’ 16 Although the Commission 

need not show that the challenged 

representation or omission in fact 

deceived a particular consumer,17 the 

Commission must show that the 

defendant made a material 

misrepresentation or omission that was 

likely to mislead consumers.18

The Commission does not allege that 

Rytr made a misleading statement or 

omission of any kind, much less one 

that was material or likely to mislead 

consumers. The Commission instead 

pleads that Rytr furnished the ‘‘means 

and instrumentalities’’ by which 

someone else could make false 

statements in violation of section 5. 

Means-and-instrumentalities liability 

arises from a century-old case involving 

not ‘‘unfair or deceptive acts or 

practices,’’ but ‘‘unfair methods of 

competition.’’ In FTC v. Winsted 

Hosiery Co., the Supreme Court 

considered an unfair-method-ofcompetition claim against a clothing 

company that falsely labeled its clothing 

as being made of wool.19 The company 

defended on the ground that the 

retailers to whom it sold its clothing 

were fully aware that the labels were 

false, and therefore the company did not 

deceive anyone.20 The Court rejected 

this defense, holding that the clothier 

was a ‘‘wrongdoer’’ because it 

‘‘furnishe[d]’’ retailers ‘‘with the means 

of consummating a fraud’’ against 

consumers, who were not aware that the 

labels were false.21 Courts and the 

Commission have since relied on 

Winsted Hosiery to hold that a person 

‘‘who puts into the hands of others the 

means by which such others may 

deceive the public is equally 

responsible for the resulting 

deception.’’ 22 This theory of liability 

has come to be known as ‘‘means-andinstrumentalities’’ liability, and ‘‘is 

intended to apply in cases . . . where 

the originator of the unlawful material 

is not in privity with consumers.’’ 23

Means-and-instrumentalities liability 

has traditionally been confined to two 

types of cases. The first involves a 

defendant who supplies someone other 

than a consumer—ordinarily a retailer— 

with a product or service that is 

unlawful because it is inherently 

deceptive, or because it has no purpose 

apart from facilitating a section 5 

violation. The recipient of that product 

or service then passes it on to 

consumers in violation of section 5. 

Winsted Hosiery was such a case. The 

Commission relied on this theory for 

many decades to pursue makers of push 

cards and punch boards custom-made 

for retailers to use in illegal lottery 

marketing schemes.24 It has also relied 

on this theory to pursue suppliers of 

mislabeled art, which retailers then sold 

to deceived consumers.25

The second type of means-andinstrumentalities case involves 

suppliers of misleading marketing 

materials that someone down the supply 

chain uses to deceive consumers. In 

these cases, the defendant makes false 

or misleading statements to someone 

further down the supply chain, who 

then repeats the misstatements to 

deceive consumers.26 If the repeated 


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deceptive list price to retailers, which was repeated 

to consumers). 

27 FTC v. Innovative Designs, Inc., No. 20–3379, 

2012 WL 3086188, at *4 n. 11 (3d Cir. July 22, 

2021). 

28See, e.g., FTC v. Noland, 672 F. Supp. 3d 721, 

786 (D. Ariz. 2023); FTC v. Fin. Educ. Servs., Inc., 

No. 2:22–CV–11120, 2022 WL 19333298, at *1 (E.D. 

Mich. May 24, 2022); FTC v. Neora LLC, 552 F. 

Supp. 3d 628 (N.D. Tex. 2021); FTC v. Vemma 

Nutrition Co., No. 15–cv–1578, 2015 WL 11118111, 

at *7 (D. Ariz. Sept. 18, 2015); FTC v. Skybiz.com, 

Inc., No. 01–CV–396–K(E), 2001 WL 1673645, at *1 

(N.D. Okla. Aug. 31, 2001); FTC v. Five-Star Auto 

Club, Inc., 97 F. Supp. 2d 502, 530–31 (S.D.N.Y. 

2000). 

29FTC, SNPRM: Trade Regulation Rule on 

Impersonation of Government and Businesses 

(‘‘SNPRM’’), 89 FR 15072, 15077 n.94 (Mar. 1, 

2024). 

30 FTC v. Magui Publishers, Inc., No. Civ. 89– 

3818, 1991 WL 90895, at *14 (C.D. Cal. Mar. 28, 

1991), aff’d, 9 F.3d 1551 (9th Cir. 1993). 

31SNPRM, 89 FR 15077 n.94. 

32See Shell Oil, 128 F.T.C. at 766 (dissenting 

statement of Commissioner Swindle) (‘‘Means and 

instrumentalities is a form of primary liability, and 

a respondent is primarily liable only for its own 

misrepresentations to consumers.’’). 

33See, e.g., Chas. A Brewer & Sons, 158 F.2d at 

77 (describing ‘‘furnishing the means of 

consummating a fraud’’ as ‘‘aiding and abetting’’ 

another’s ‘‘unfair or deceptive acts or practices’’); 

Gay Games, Inc. v. FTC, 204 F.2d 197, 199 (10th 

Cir. 1953) (similar); Consol. Mfg. Co. v. FTC, 199 

F.2d 417, 418 (4th Cir. 1952) (per curiam) (similar); 

see also Deer v. FTC, 152 F.2d 65, 66 (2d Cir. 1945) 

(‘‘[I]t was not necessary to prove that the petitioners 

actually participated in the operation of the bingo 

game or the club plan conducted by their 

customers; it is enough that they aided and abetted 

in such’’ games by furnishing the paraphernalia for 

the game.). 

34 Federal Trade Commission Reauthorization: 

Hearing Before the S. Comm. on Com., Sci., and 

Transp., S. Hrg. 110–1148, p. 21 n.56 (2008) 

(Prepared Statement of the Federal Trade 

Commission). 

35 464 U.S. 417, 419–20, 421–23 (1984). 

36 Id. at 442. 

37See, e.g., Dawson Chem. Co. v. Rohm & Hass 

Co., 448 U.S. 176, 198 (1980) (holding that the 

patent laws do not forbid the sale of ‘‘unpatented 

articles that were essential to . . . patented 

inventions’’ unless those unpatented articles ‘‘were 

unsuited for any commercial noninfringing use’’); 

Henry v. A.B. Dick Co., 224 U.S. 1, 48 (1912) (‘‘[A] 

sale of an article which though adapted to an 

infringing use is also adapted to other and lawful 

uses, is not enough to make the seller a contributory 

infringer. Such a rule would block the wheels of 

commerce.’’) 

38See supra n. 29–34 and accompanying text. 

39U.S. Department of Justice, Criminal Resource 

Manual, § 2474. Elements of Aiding and Abetting 

(synthesizing Federal appellate precedent). 

40Restatement (Second) of Torts § 876(b) (1979) 

(emphasis added). 

statement does not satisfy the three-part 

test for deception under section 5, 

however, it cannot give rise to meansor-instrumentalities liability.27 The 

classic example of this case involves 

deceptive marketing materials for 

multilevel-marketing businesses and 

‘‘pyramid’’ schemes. The participants at 

the top of the pyramid do not interact 

with consumers; they instead convey 

false statements to others further down 

the pyramid who in turn use those 

materials to deceive consumers. The 

Commission has used the means-andinstrumentalities theory against the 

orchestrators of deception who sit at the 

top of the pyramid.28

This categorization seems 

straightforward at first blush, but the 

means-and-instrumentalities doctrine 

becomes less coherent the closer one 

looks. On the one hand, we have 

described ‘‘ ‘means and 

instrumentalities’ liability [as] a form of 

direct liability,’’ 29 that is, as a way of 

holding someone ‘‘directly liable for 

violating’’ 30 Section 5 ‘‘distinct from 

‘aiding and abetting’ liability and 

‘assisting and facilitating’ liability, both 

of which are secondary forms of 

liability.’’ 31 That appears to be true 

when the Commission uses this theory 

against the orchestrator of a pyramid 

scheme, who makes misrepresentations 

to someone other than a consumer but 

which misrepresentations are repeated 

to consumers by people further down 

the pyramid.32 When applying meansand-instrumentalities liability against 

defendants who supplied the 

component parts of someone else’s 

section 5 violation, however, courts 

have described the theory as a species 

of aiding-and-abetting liability.33 We 

have also told Congress that our meansand-instrumentalities theory is an 

‘‘alternative theor[y]’’ to aiding-andabetting liability by which we can 

‘‘reach secondary actors.’’ 34 Means-andinstrumentalities liability therefore 

sometimes functions as a form of direct 

liability (when deployed against the 

orchestrator of a pyramid scheme, for 

example) and sometimes as a form of 

aiding-and-abetting liability (when 

deployed against the makers of punch 

boards and push cards, for example). 

The complaint against Rytr falls into 

neither category. The Commission does 

not accuse Rytr of making any 

statements, much less false statements. 

Nor is Rytr’s tool necessarily deceptive 

like mislabeled art, or useful only in 

facilitating someone else’s section 5 

violation like lottery punch boards. 

Rytr’s tool has both lawful and unlawful 

potential uses. A consumer could use it 

to draft an honest and accurate review. 

Or a business could use it to write a 

false review. 

B. 1 

The Commission’s complaint is a 

dramatic extension of means-andinstrumentalities liability. The 

Commission treats Rytr’s sale of a 

product with lawful and unlawful 

potential uses as a categorical section 5 

violation because someone could use it 

to write a statement that could violate 

section 5. But that is true of an almost 

unlimited number of products and 

services: pencils, paper, printers, 

computers, smartphones, word 

processors, typewriters, posterboard, 

televisions, billboards, online 

advertising space, professional printing 

services, etc. On the Commission’s 

theory, the makers and suppliers of 

these products and services are 

furnishing the means or 

instrumentalities to deceive consumers 

merely because someone might put 

them to unlawful use. 

This theory is incorrect. Section 5 

does not categorically prohibit a product 

or service merely because someone 

might use it to deceive someone else. 

Interpreting section 5 to prohibit 

products and services with conceivable 

illegal uses would prohibit an infinite 

variety of innocent and productive 

conduct. Congress cannot have intended 

to capture such conduct in the phrase 

‘‘deceptive acts and practices.’’ 

Not only is the Commission’s theory 

a departure from section 5 precedents, 

but it is also inconsistent with how 

other areas of the law deal with the 

same issue. In Sony Corp. of America v. 

Universal City Studios, Inc., for 

example, the Supreme Court considered 

whether a product capable of facilitating 

en masse copyright infringement— 

Betamax video recorders capable both of 

lawfully playing Betamax tapes and of 

unlawfully recording copyrighted 

television broadcasts—violated the 

copyright laws.35 The Court concluded 

that so long as a product is ‘‘merely . . . 

capable of substantial noninfringing 

uses,’’ it did not violate the copyright 

laws even if it is also capable of 

committing countless acts of 

infringement.36 Similarly, patent law 

does not treat as infringement the sale 

of an unpatented part of a patented 

machine that could be used to infringe 

the patent, so long as the part is capable 

of some noninfringing uses.37

Aiding-and-abetting liability, which 

bears many similarities to means-andinstrumentalities liability,38 also does 

not punish conduct merely because it 

facilitated the commission of a tort or 

crime. Liability for aiding and abetting 

under Federal criminal law requires 

‘‘that the accused ha[d] the specific 

intent to facilitate the commission of a 

crime by another’’ as well as ‘‘the 

requisite intent of the underlying 

substantive offense.’’ 39 And in tort law, 

one is liable for the torts of another ‘‘if 

he knows that the other’s conduct 

constitutes a breach of duty and gives 

substantial assistance or encouragement 

to the other.’’ 40


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41Complaint ¶ 14. 

42See supra n. 24–25 and accompanying text 

(discussing courts of appeals precedents sustaining 

Commission orders prohibiting the sale of push 

cards and punch boards). 

43Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(‘‘Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, 

do not suffice’’ for a complaint to survive a motion 

to dismiss.). 

44See Blaise Pascal, Letter XVI, Lettres 

Provinciales (1657) (‘‘I would have written a shorter 

letter, but I did not have the time.’’). 

45Complaint ¶ 6; see also id. ¶ 8 (‘‘Respondent’s 

service generates reviews that would almost 

certainly be false for the users who copy the 

generated content and publish it online.’’). 

46 318 F.2d 28, 30 (7th Cir. 1963). 

47 Ibid. 

48 Ibid. 

49 Ibid. 

50Shell Oil, 128 F.T.C. at 764. 

51 89 FR 15017 (Mar. 1, 2024) (to be codified at 

16 CFR part 461). 

52 16 CFR 461.2, 461.3. 

53 87 FR 62741, 62751 (Oct. 17, 2022). 

54 89 FR at 15022. 

55 89 FR at 15023. 

56SNPRM, 89 FR 15072, 15077 (Mar. 1, 2024); see 

also id. at 15083 (text of proposed rule). 

57 FTC v. LeadClick Media, LLC, 838 F.3d 158, 

170 (2d Cir. 2016). 

58 FTC v. On Point Capital Partners LLC, 17 F.4th 

1066, 1083 (11th Cir. 2021) (quoting FTC v. Gem 

Merch. Corp., 87 F.3d 466, 470 (11th Cir. 1996)); 

Continued 

2 

The Commission tries to diminish the 

grandiosity of its theory by alleging that 

Rytr’s tool ‘‘has no or de minimis 

legitimate use.’’ 41 If this were true, then 

I might agree with the Commission’s 

decision to file this complaint. Courts 

have for decades interpreted section 5 to 

prohibit the sale of products with no 

reasonable uses other than facilitating 

an unfair or deceptive act or practice.42

But the Commission’s conclusory 

description of the Rytr tool’s plausible 

uses is pure ipse dixit. The complaint 

contains no factual allegations lending 

plausibility to its conclusion that the 

tool has no, or only de minimis, 

legitimate uses.43 Nor I have seen any 

evidence giving me reason to believe 

that the allegation is true. 

Indeed, the complaint’s conclusion is 

entirely implausible. For one thing, if 

the Rytr tool’s exclusive use were to 

generate false consumer reviews in 

violation of section 5, one would expect 

the complaint to contain allegations that 

someone used it to violate section 5, at 

least once. But the Commission does not 

allege a single example of a Rytrgenerated review being used to deceive 

consumers in violation of section 5, nor 

am I aware of any. 

The Rytr tool’s legitimate utility to 

consumers is obvious: to assist them in 

writing reviews. Writing a succinct and 

thoughtful review can be difficult and 

time-consuming,44 and a tool that 

produces a well-written first draft of a 

review based on some keyword inputs 

can make the task much more 

accessible. 

The Commission describes the Rytr 

tool’s only use as ‘‘generating written 

content for a review’’ that a user would 

then ‘‘manually select and copy . . . to 

post reviews elsewhere online.’’ 45 But 

consumers do not have to use generative 

AI as a replacement for their own 

thoughts and ideas. Consumers can use 

AI-generated first drafts of documents in 

much the same way they would use a 

human-generated first draft—as a 

starting point from which the user can 

work to convey accurately and clearly 

the idea in the user’s mind. A consumer 

would not violate section 5 by using a 

generative AI tool to write a first draft 

of a review, even if that first draft 

contained inaccuracies that the user 

then removed. 

I do not doubt that some people use 

generative AI tools to accomplish fraud. 

Almost every technology since the first 

time a human being sharpened a stick 

can be put to some illegal use. But that 

does not mean that those tools are the 

means and instrumentalities to deceive 

consumers. Section 5 does not prohibit 

the sale of any product that someone 

could use to violate section 5. 

C 

The question, then, is whether the 

Commission may ever treat a product or 

service with lawful and unlawful 

potential uses as the means and 

instrumentalities to violate section 5. 

The law is clear that it may, but only if 

the provider of the product or service 

knows, or has reason to know, that the 

person to whom the product or service 

was supplied will use it to violate 

section 5. A knowledge requirement 

avoids treating innocent and productive 

conduct as illegal merely because of the 

subsequent acts of independent third 

parties. 

Courts have required knowledge in 

similar means-and-instrumentalities 

cases for decades. In Waltham Watch 

Co. v. FTC, for example, a clockmaker 

granted a license to use the 

clockmaker’s famous trademark in the 

sale of clocks.46 The licensee then used 

the trademark to deceive consumers and 

other dealers into believing that clocks 

had been manufactured by the 

clockmaker.47 The clockmaker was 

liable for the deception, the court of 

appeals reasoned, because the 

clockmaker in fact knew that the 

licensee was using the license to 

commit fraud and took no action to 

prevent it.48 That knowledge 

transformed an otherwise neutral 

license agreement into the ‘‘means and 

instrumentalities by which many people 

had been hoodwinked, defrauded, and 

misled.’’ 49 Similarly, in one of the 

Commission’s most important 

statements of the scope of means-andinstrumentalities liability, we explained 

that ‘‘[i]t is well settled law’’ under the 

means-and-instrumentalities doctrine 

that ‘‘the originator’’ of a false or 

misleading representation ‘‘is liable if it 

passes on a false or misleading 

representation with knowledge or reason 

to expect that consumers may possibly 

be deceived as a result.’’ 50

The Commission recently 

acknowledged that section 5 requires 

proof of knowledge before treating 

products and services with lawful and 

unlawful potential uses as the means 

and instrumentalities to violate section 

5. Earlier this year, the Commission 

promulgated the Trade Regulation Rule 

on Impersonation of Government and 

Businesses (Impersonation Rule).51 The 

rule treats the impersonation of a 

government official or business as an 

unfair or deceptive act or practice.52 Our 

Notice of Proposed Rulemaking (NPRM) 

for the Impersonation Rule proposed 

treating the provision of ‘‘the means and 

instrumentalities for’’ impersonation as 

a section 5 violation.53 But we received 

a host of comments warning that 

imposing means-and-instrumentalities 

liability without a scienter requirement 

would ‘‘impos[e] strict liability on 

unwitting third-party providers of 

services or products.’’ 54 We therefore 

removed the mean-andinstrumentalities provision from the 

Impersonation Rule and issued a 

supplemental NPRM on the same 

topic.55 The supplemental NPRM 

proposes treating the provision of 

‘‘goods or services’’ as a section 5 

violation only if ‘‘a party knew or had 

reason to know that the goods or 

services they provided will be used for 

the purpose of impersonations.56

Section 5 also requires proof of 

knowledge of third-party behavior in 

other, similar contexts. For example, a 

defendant is liable for the deceptive acts 

of its third-party affiliates only if the 

defendant has actual knowledge of the 

affiliates’ ongoing deception and ‘‘either 

directly participates in that deception, 

or has the authority to control’’ it and 

‘‘allows the deception to proceed.’’ 57

And section 5 imposes liability on an 

individual officer for the violations of a 

corporate entity only if ‘‘the individual 

had ‘some knowledge of the practices’ 

and . . . either ‘participated directly in 

the practice or acts or had the authority 

to control them.’ ’’ 58 These knowledge 


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FTC v. Moses, 913 F.3d 297, 306–07 (2d Cir. 2019); 

FTC v. Com. Planet, Inc., 815 F.3d 593, 600 (9th Cir. 

2016) (similar); FTC v. Freecom Commc’ns, Inc., 

401 F.3d 1192, 1203–04 (10th Cir. 2005) (similar); 

FTC v. Amy Travel Serv., Inc., 875 F.2d 564, 573 

(7th Cir. 1989) (similar). 

59 545 U.S. 913 (2005). 

60 Id. at 919–20. 

61 Id. at 931–32. 

62 Id. at 934–35. 

63 Id. at 935 (quoting Kalem Co. v. Harper Bros., 

222 U.S. 55, 63 (1911)). 

64 15 U.S.C. 45(b). 

65Concurring and Dissenting Statement of 

Commissioner Andrew N. Ferguson, A Look Behind 

the Screens: Examining the Data Practices of Social 

Media and Video Streaming Services, at 11 n.44 

(Sept. 19, 2024). 

66 Id. at 10–11. 

67 I support, for example, the complaint and 

settlement that we announce today against 

DoNotPay for deceiving consumers about the 

capabilities of its generative AI service. Concurring 

Statement of Commissioner Andrew N. Ferguson, In 

the Matter of DoNotPay, Inc. (Sept. 25, 2024). 

68See, e.g., Buckley v. Valeo, 424 U.S. 1, 16, 19– 

20 & n.18, 44–45 (1976) (per curiam) (striking down 

Federal limitations on political expenditures on the 

ground that such expenditures are a necessary 

ingredient to the sort of mass political 

communication protected by the Speech Clause); 

McConnell v. FEC, 540 U.S. 93, 251 (2003) (Scalia, 

J., concurring in part, concurring in the judgment 

in part, and dissenting in part) (‘‘To a government 

bent on suppressing speech, this mode of 

organization presents opportunities: Control any 

cog in the machine, and you can halt the whole 

apparatus.’’). See also Minneapolis Star & Tribune 

Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 

591–93 (1983) (striking down a tax on paper and 

ink as an unconstitutional restriction of the freedom 

of speech and of the press); Grosjean v. Am. Press 

Co., 297 U.S. 233, 250–51 (1936) (striking down 

statute taxing the sale of advertisements in 

publications with a weekly circulation greater than 

20,000 copies). 

requirements implement a common 

sense principle: section 5 does not hold 

people liable for innocent conduct that 

may have unwittingly facilitated 

someone else’s violation. 

Other areas of the law abide by the 

same common-sense principle. In 

Metro-Goldwyn-Mayer Studios Inc. v. 

Grokster, for example, the Supreme 

Court again confronted the question of 

whether a product with both infringing 

and noninfringing uses violated the 

copyright laws.59 In that case, the 

product was peer-to-peer file sharing 

software that was commonly used to 

share copyrighted music and films 

without authorization.60 Although the 

copyright laws do not prohibit a product 

‘‘capable of commercially significant 

noninfringing uses’’ even if it were also 

capable of substantial infringement,61

the makers of the peer-to-peer 

filesharing software distributed their 

product with the intention of promoting 

infringement.62 Imposing copyright 

liability on a party who distributed a 

product with the intention of facilitating 

infringement was consistent with 

‘‘principles recognized in every part of 

the law.’’ 63

The point here is not to identify 

exhaustively the circumstances in 

which the provision of a product or 

service with lawful and unlawful 

potential uses may violate section 5. I 

instead argue only that, at the very least, 

precedent and common-sense 

‘‘principles recognized in every part of 

the law’’ require that the government 

must show that a defendant knew that 

he was participating in someone else’s 

unfair or deceptive act or practice when 

he provided that product or service. 

III 

I dissent from the filing of this 

complaint for an additional reason. We 

may file an administrative action 

alleging a section 5 violation only if 

such an action ‘‘would be to the interest 

of the public.’’ 64 I do not believe this 

action is in the public interest for two 

reasons. 

First, the Commission’s aggressive 

move into AI regulation is premature. AI 

is the subject of heated rhetoric. 

Doomsayers warn that AI will take our 

jobs, hopelessly blur the distinction 

between fact and fiction, and maybe 

even threaten the survival of human 

civilization. AI companies do not 

forcefully resist all these claims, given 

that predictions about the incredible 

potential for AI may be useful as these 

companies compete for investment 

dollars and engineering talent. But the 

Commission should not succumb to the 

panic or hype. Generative AI technology 

is impressive, but it is also nascent. 

Neither its naysayers nor its 

cheerleaders really understand its 

potential, or whether it represents 

substantial progress toward ‘‘artificial 

general intelligence’’ (AGI)—machine 

intelligence matching both the breadth 

and power of the human mind, the holy 

grail of AI research.65 That ignorance is 

not a reason to plunge headlong with 

aggressive regulation. It is a reason to 

stay our hand. 

As our country has always done, we 

should give this industry the space to 

realize its full potential—whatever that 

turns out to be. America is the greatest 

commercial power in the history of the 

world in no small part because of its 

tolerant attitude toward innovation and 

new industry. There has never been a 

better place in the world to have a new 

idea than the United States. We should 

go to great lengths to ensure that 

remains the case. 

When people use generative AI 

technology to lie, cheat, and steal, the 

law should punish them no differently 

than if they use quill and parchment.66

But Congress has not given us the power 

to regulate AI. It has tasked us with 

enforcing the prohibition against unfair 

or deceptive acts and practices. If our 

enforcement incidentally captures some 

AI-generated conduct, so be it.67 But we 

should not bend the law to get at AI. 

And we certainly should not chill 

innovation by threatening to hold AI 

companies liable for whatever illegal 

use some clever fraudster might find for 

their technology. 

Second, the complaint implicates 

important First Amendment interests. 

The First Amendment constrains the 

government’s authority to regulate the 

inputs of speech.68 The Commission 

today holds a company liable under 

section 5 for a product that helps people 

speak, quite literally. The theory on 

which the complaint rests would permit 

the Commission to proscribe Microsoft 

Word merely because someone may use 

it to create a fake review, or Adobe 

Photoshop merely because someone 

used it to create a false celebrity 

endorsement. The danger this theory 

poses to free speech is obvious. Yet 

because the technology in question is 

new and unfamiliar, I fear we are giving 

short shrift to common sense and to 

fundamental constitutional values. 

I respectfully dissent. 

[FR Doc. 2024–22767 Filed 10–2–24; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

Solicitation of Nominations for 

Appointment to the World Trade 

Center Health Program Scientific/ 

Technical Advisory Committee 

AGENCY: Centers for Disease Control and 

Prevention (CDC), Department of Health 

and Human Services (HHS). 

ACTION: Notice. 

SUMMARY: The Centers for Disease 

Control and Prevention (CDC), within 

the Department of Health and Human 

Services (HHS), is seeking nominations 

for membership on the World Trade 

Center (WTC) Health Program 

Scientific/Technical Advisory 

Committee (STAC), in accordance with 

provisions of the James Zadroga 9/11 

Health and Compensation Act of 2010, 

as amended. The STAC consists of 17 

members including experts in fields 

associated with occupational medicine, 

pulmonary medicine, environmental 

medicine, environmental health, 

industrial hygiene, epidemiology, 

toxicology, and mental health, and 


ddrumheller on DSK120RN23PROD with NOTICES1