I 
114TH CONGRESS 
2D SESSION 
H. R. 5510 
To amend the Federal Trade Commission Act to establish new requirements 
relating to investigations, consent orders, and reporting requirements, 
and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JUNE 16, 2016 
Mr. BURGESS introduced the following bill; which was referred to the Com-
mittee on Energy and Commerce, and in addition to the Committee on 
the Judiciary, for a period to be subsequently determined by the Speaker, 
in each case for consideration of such provisions as fall within the juris-
diction of the committee concerned 
A BILL 
To amend the Federal Trade Commission Act to establish 
new requirements relating to investigations, consent or-
ders, and reporting requirements, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘FTC Process and Transparency Reform Act of 2016’’. 
(b) TABLE OF CONTENTS.—The table of contents for 
this Act is as follows: 
Sec. 1. Short title; table of contents. 
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Sec. 2. Unlawful act or practice. 
Sec. 3. Time limitation for consent orders. 
Sec. 4. Annual reporting on the status of investigations. 
Sec. 5. Requirement of analysis and rationale for legislative and regulatory rec-
ommendations. 
Sec. 6. Effects of guidelines, general statements of policy, and similar guidance. 
Sec. 7. Termination of inactive investigations. 
Sec. 8. Nonpublic collaborative discussions. 
Sec. 9. Annual plan required. 
SEC. 2. UNLAWFUL ACT OR PRACTICE. 
Section 5(n) of the Federal Trade Commission Act 
(15 U.S.C. 45(n)) is amended to read as follows: 
‘‘(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 un-
less the act or practice causes or is likely to 
cause substantial injury to consumers which is 
not reasonably avoidable by consumers them-
selves and not outweighed by countervailing 
benefits to consumers or to competition. 
‘‘(B) 
SUBSTANTIAL
INJURY
TO
CON-
SUMERS.—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 prac-
tice is trivial or merely speculative. An injury 
may be sufficiently substantial if the injury 
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does a small harm to a large number of people. 
An act or practice may be likely to cause a sub-
stantial injury if the act or practice raises a sig-
nificant risk of concrete harm. 
‘‘(C) CONSIDERATIONS REQUIRED.—In de-
termining whether an act or practice causes or 
is likely to cause substantial injury to con-
sumers under this subsection, the Commission 
shall consider the following: 
‘‘(i) Whether the act or practice re-
sults in monetary harm. 
‘‘(ii) Whether the act or practice re-
sults in unwarranted health or safety risk. 
‘‘(iii) Whether the act or practice re-
sults only in emotional or other more sub-
jective 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 deter-
mining whether an act or practice is injurious 
in its net effects, the Commission shall consider 
the following: 
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‘‘(i) The various costs for a remedy, 
including the costs to the parties directly 
before the Commission. 
‘‘(ii) The burdens on society in gen-
eral in the form of increased paperwork, 
increased regulatory burdens on the flow of 
information, reduced incentives to innova-
tion and capital formation, and other simi-
lar matters. 
‘‘(B) CONSUMER
DECISIONS.—The Com-
mission may not second-guess the wisdom of 
particular consumer decisions, but may consider 
whether the act or practice unreasonably cre-
ates or takes advantage of an obstacle to the 
free exercise of consumer decisionmaking. 
‘‘(3) PUBLIC POLICY CONSIDERATIONS.—In de-
termining 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.’’. 
SEC. 3. TIME LIMITATION FOR CONSENT ORDERS. 
(a) AMENDMENT.—Section 5 of the Federal Trade 
Commission Act (15 U.S.C. 45) is amended by adding at 
the end the following new subsection: 
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‘‘(o) TERMINATION CLAUSE REQUIRED FOR CON-
SENT ORDERS.—Any consent order entered into by the 
Commission relating to alleged unfair or deceptive acts or 
practices by the person, partnership, or corporation, sub-
ject to the consent order shall include a termination clause 
that the consent order shall expire not later than 8 years 
after the date on which the consent order is entered into, 
unless the consent order relates to alleged fraud by the 
person, partnership, or corporation subject to the consent 
order or requires a time limit longer than 8 years based 
on the factors described in this subsection. In determining 
the time limit for any termination clause, the Commission 
shall consider each of the following factors: 
‘‘(1) The impact of technological progress on 
the continuing relevance of the consent order. 
‘‘(2) Whether there is reason to believe that the 
person, partnership, or corporation would continue 
to engage in activities that violate this section with-
out the consent order. 
‘‘(p) CONSENT ORDER REVIEW.—Any consent order 
entered into by the Commission that is unrelated to al-
leged fraud by the person, partnership, or corporation sub-
ject to the consent order and has a termination date more 
than 5 years after such consent order is entered into shall 
include a clause providing for Commission review of the 
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consent order 5 years after the date on which the order 
is entered into. Such clause shall require the Commission 
to evaluate whether the consent order has achieved its ini-
tial purposes based on the factors described in subsection 
(o). The clause shall provide that if, based on such evalua-
tion, the Commission determines that the consent order 
has achieved its purposes, the Commission shall terminate 
the consent order. 
‘‘(q) PETITION FOR REVIEW OF EXISTING CONSENT 
ORDERS.—Any person, partnership, or corporation that as 
of the effective date of this subsection is subject to a con-
sent order that is unrelated to alleged fraud and has been 
effective for a period of at least five years may petition 
the Commission to terminate such consent order. In evalu-
ating a petition to terminate a consent order under this 
subsection, the Commission shall consider whether the 
consent order has achieved its initial purposes based on 
each of the factors described in subsection (o). If, based 
on such evaluation, the Commission determines that the 
consent order has achieved its purposes, the Commission 
shall terminate the consent order.’’. 
(b) EFFECTIVE DATE; APPLICABILITY.—The amend-
ment made by subsection (a) shall take effect on the date 
of enactment of this Act and with respect to subsections 
(o) and (p) of section 5 of the Federal Trade Commission 
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Act (15 U.S.C. 45), as added by subsection (a), shall apply 
with respect to any consent order entered into after such 
date. 
SEC. 4. ANNUAL REPORTING ON THE STATUS OF INVES-
TIGATIONS. 
Section 5 of the Federal Trade Commission Act (15 
U.S.C. 45), as amended by section 3, is further amended 
by adding at the end the following new subsection: 
‘‘(r) REPORT ON INVESTIGATIONS.— 
‘‘(1) IN GENERAL.—The Commission shall, on 
an annual basis, submit a report to Congress on in-
vestigations with respect to unfair or deceptive acts 
or practices, and with respect to unfair methods of 
competition, in or affecting commerce (within the 
meaning of subsection (a)(1)), detailing— 
‘‘(A) the number of such investigations the 
Commission has commenced; 
‘‘(B) the number of such investigations the 
Commission has closed with no official agency 
action; 
‘‘(C) the disposition of such investigations, 
if such investigations have concluded and re-
sulted in official agency action; and 
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‘‘(D) for each such investigation that was 
closed with no official agency action, subject to 
paragraph (2), a description— 
‘‘(i) sufficient to indicate the legal 
analysis supporting the Commission’s deci-
sion not to continue such investigation; 
and 
‘‘(ii) of the industry sectors of the 
persons, partnerships, or corporations who 
are subjects of such investigation. 
‘‘(2) CONSENT
REQUIRED.—The Commission 
shall not include in a report required under para-
graph (1) the description required under subpara-
graph (D) of such paragraph unless the Commission 
has— 
‘‘(A) provided to each person, partnership, 
or corporation who is a subject of the investiga-
tion a notification containing the description to 
be included in the report; and 
‘‘(B) obtained the consent of each such 
person, partnership, or corporation to the inclu-
sion of the description in the report. 
‘‘(3) PRIVACY
PROTECTION.—The description 
required under paragraph (1)(D) shall not include 
the identity of any person, partnership, or corpora-
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tion who is a subject of the investigation or any 
other information that identifies the person, partner-
ship, or corporation.’’. 
SEC. 5. REQUIREMENT OF ANALYSIS AND RATIONALE FOR 
LEGISLATIVE 
AND 
REGULATORY 
REC-
OMMENDATIONS. 
The Federal Trade Commission Act (15 U.S.C. 41 
et seq.) is amended by inserting after section 6 the fol-
lowing new section: 
‘‘SEC. 6A. ECONOMIC ANALYSIS REQUIRED. 
‘‘(a) IN GENERAL.—Except as provided in subsection 
(b), the Commission may not publish a recommendation 
for legislative or regulatory action without publishing the 
economic analysis or advice prepared by the Bureau of Ec-
onomics of the Commission relating to such recommenda-
tion. If no such economic analysis or advice was prepared, 
the Commission shall indicate, in writing as part of the 
recommendation, that no such analysis or advice was 
given. 
‘‘(b) EXCEPTION.—The requirement in subsection (a) 
shall not apply if— 
‘‘(1) the recommendation for legislative or regu-
latory action is made as part of an appearance by 
a Commissioner before Congress; 
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‘‘(2) the recommendation is made to a State or 
local government entity; or 
‘‘(3) the recommendation is requested by and 
submitted to any member or committee of Congress, 
including the Committee on Energy and Commerce 
of the House of Representatives.’’. 
SEC. 6. EFFECTS OF GUIDELINES, GENERAL STATEMENTS 
OF POLICY, AND SIMILAR GUIDANCE. 
Section 18(a) of the Federal Trade Commission Act 
(15 U.S.C. 57a(a)) is amended by adding at the end the 
following: 
‘‘(3)(A) No guidelines, general statements of policy, 
or similar guidance related either to unfair methods of 
competition or to unfair or deceptive acts or practices, in 
or affecting commerce, issued by the Commission shall 
confer any rights upon any person, State, or locality, nor 
shall operate to bind the Commission or any person, State, 
or locality to the approach recommended in such guide-
lines, general statements of policy, or similar guidance. In 
any enforcement action, the Commission shall prove a vio-
lation of a provision of law enforced by the Commission. 
The Commission may not base an enforcement action on, 
or execute a consent order based on, acts or practices that 
are alleged to be inconsistent with any such guidelines, 
general statements of policy, or similar guidance, unless 
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