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. .

Summary: Statement on Unfairness Reinforcement and Emphasis Act or the SURE Act This bill amends the Federal Trade Commission Act to provide additional factors for the Federal Trade Commission (FTC) to consider before it may declare acts or practices to be unlawful on the ground that they are unfair and likely to cause substantial injury to consumers. Trivial or merely speculative injury or harm must be considered unlikely to cause substantial injury. But the FTC may consider substantial: (1) an injury that does small harm to a large number of people, or (2) a significant risk of concrete harm. In determining the likelihood of substantial injury to consumers, the FTC must consider whether the act or practice results in: (1) monetary harm, (2) unwarranted health or safety risks, or (3) only emotional or other more subjective harm. The FTC must also find an act or practice to be injurious in its net effects before it may be considered unfair. In determining the net effects, the FTC must consider: (1) remedy costs; and (2) burdens on society in general, such as increased paperwork or regulatory burdens or reduced incentives for innovation and capital formation. The FTC may not second-guess consumer decisions, but may consider whether an act or practice unreasonably creates or takes advantage of an obstacle to the free exercise of consumer decisionmaking.