I 

114TH CONGRESS 

2D SESSION H. R. 5115 

To amend the Federal Trade Commission Act to include requirements for 

declaring an unlawful act or practice, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 28, 2016 

Mr. MULLIN (for himself, Mr. LANCE, and Mr. HARPER) introduced the 

following bill; which was referred to the Committee on Energy and Commerce 

A BILL 

To amend the Federal Trade Commission Act to include 

requirements for declaring an unlawful act or practice, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Statement on Unfair5 ness Reinforcement and Emphasis Act’’ or the ‘‘SURE 

6 Act’’. 

7 SEC. 2. UNLAWFUL ACT OR PRACTICE. 

8 Section 5(n) of the Federal Trade Commission Act 

9 (15 U.S.C. 45(n)) is amended to read as follows: 

10 ‘‘(n) UNLAWFUL ACT OR PRACTICE.— 


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1 ‘‘(1) SUBSTANTIAL INJURY REQUIRED.— 

2 ‘‘(A) IN GENERAL.—The Commission shall 

3 have no authority under this section or section 

4 18 to declare unlawful an act or practice on the 

5 grounds that such act or practice is unfair un6 less the act or practice causes or is likely to 

7 cause substantial injury to consumers which is 

8 not reasonably avoidable by consumers them9 selves and not outweighed by countervailing 

10 benefits to consumers or to competition. 

11 ‘‘(B) SUBSTANTIAL INJURY TO CON12 SUMERS.—For purposes of this subsection, an 

13 act or practice does not cause and is not likely 

14 to cause substantial injury to consumers if the 

15 injury or harm resulting from such act or prac16 tice is trivial or merely speculative. An injury 

17 may be sufficiently substantial if the injury 

18 does a small harm to a large number of people. 

19 An act or practice may be likely to cause a sub20 stantial injury if the act or practice raises a sig21 nificant risk of concrete harm. 

22 ‘‘(C) CONSIDERATIONS REQUIRED.—In de23 termining whether an act or practice causes or 

24 is likely to cause substantial injury to conVerDate Sep 11 2014 00:58 May 05, 2016 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5115.IH H5115

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1 sumers under this subsection, the Commission 

2 shall consider the following: 

3 ‘‘(i) Whether the act or practice re4 sults in monetary harm. 

5 ‘‘(ii) Whether the act or practice re6 sults in unwarranted health or safety risk. 

7 ‘‘(iii) Whether the act or practice re8 sults only in emotional or other more sub9 jective harm. 

10 ‘‘(2) NET EFFECTS OF INJURY REQUIRED.— 

11 ‘‘(A) CONSIDERATIONS REQUIRED.—An 

12 act or practice is not unfair unless the act or 

13 practice is injurious in its net effects. In deter14 mining whether an act or practice is injurious 

15 in its net effects, the Commission shall consider 

16 the following: 

17 ‘‘(i) The various costs for a remedy, 

18 including the costs to the parties directly 

19 before the Commission. 

20 ‘‘(ii) The burdens on society in gen21 eral in the form of increased paperwork, 

22 increased regulatory burdens on the flow of 

23 information, reduced incentives to innova24 tion and capital formation, and other simi25 lar matters. 


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1 ‘‘(B) CONSUMER DECISIONS.—The Com2 mission may not second-guess the wisdom of 

3 particular consumer decisions, but may consider 

4 whether the act or practice unreasonably cre5 ates or takes advantage of an obstacle to the 

6 free exercise of consumer decisionmaking. 

7 ‘‘(3) PUBLIC POLICY CONSIDERATIONS.—In de8 termining whether an act or practice is unfair, the 

9 Commission may consider established public policies 

10 as evidence to be considered with all other evidence. 

11 Such public policy considerations may not serve as 

12 a primary basis for such determination.’’. 

Æ 


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