SURE Act

To amend the Federal Trade Commission Act to include requirements for declaring an unlawful act or practice, and for other purposes. 1. Short title This Act may be cited as the Statement on Unfairness Reinforcement and Emphasis Act SURE Act 2. Unlawful act or practice Section 5(n) of the Federal Trade Commission Act ( 15 U.S.C. 45(n) (n) Unlawful act or practice (1) Substantial injury required (A) In general The Commission shall have no authority under this section or section 18 to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice 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. (B) Substantial injury to consumers For purposes of this subsection, an act or practice does not cause and is not likely to cause substantial injury to consumers if the injury or harm resulting from such act or practice is trivial or merely speculative. An injury may be sufficiently substantial if the injury does a small harm to a large number of people. An act or practice may be likely to cause a substantial injury if the act or practice raises a significant risk of concrete harm. (C) Considerations required In determining whether an act or practice causes or is likely to cause substantial injury to consumers under this subsection, the Commission shall consider the following: (i) Whether the act or practice results in monetary harm. (ii) Whether the act or practice results in unwarranted health or safety risk. (iii) Whether the act or practice results only in emotional or other more subjective harm. (2) Net effects of injury required (A) Considerations required An act or practice is not unfair unless the act or practice is injurious in its net effects. In determining whether an act or practice is injurious in its net effects, the Commission shall consider the following: (i) The various costs for a remedy, including the costs to the parties directly before the Commission. (ii) The burdens on society in general in the form of increased paperwork, increased regulatory burdens on the flow of information, reduced incentives to innovation and capital formation, and other similar matters. (B) Consumer decisions The Commission may not second-guess the wisdom of particular consumer decisions, but may consider whether the act or practice unreasonably creates or takes advantage of an obstacle to the free exercise of consumer decisionmaking. (3) Public policy considerations In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination. (4) Economic analysis In determining whether an act or practice is unfair, the Commission shall consider an economic analysis from the Bureau of Economics of the Commission with respect to the act or practice. .

Summary: Statement on Unfairness Reinforcement and Emphasis Act or the SURE Act This bill provides statutory authority for the factors that the Federal Trade Commission must consider when determining whether a practice causes or is likely to cause a substantial injury to consumers (the factors generally mirror the current policy of the commission). For example, the commission must consider whether the practice results in monetary harm, unwarranted health or safety risk, and only emotional or subjective harm. Further, to be considered an unfair practice, the net effects (including consideration of the costs for a remedy and the resulting burden on society from making the practice unlawful) must cause injury. The commission also must consider an economic analysis from the Bureau of Economics.