The Federal Trade Commission (FTC) ushers in a new outlook on enforcement in its strategic plan released August 26,¹ which sets the FTC’s priorities for the next five years. This plan comes under the leadership of FTC Chair Lina Khan who has brought a more expansive view of the FTC’s role in antitrust enforcement than in previous administrations.

In her Message from the Chair, Khan highlighted that in crafting the plan the agency considered loss of its 13(b) authority. The U.S. Supreme Court, in AMG Capital Management, LLC v. FTC, 141 S. Ct. 1341 (2021), limited the FTC’s authority under Section 13(b) of the FTC Act to recover money for harmed consumers.² Chair Khan also noted that the plan “reflects the FTC’s commitment to ensuring its work benefits all Americans.”

Shifting to a Broader Focus

Notably, the FTC Mission and Vision statements in the plan focus on protecting the public, going beyond the FTC’s traditional focus on protecting consumers and competition. For example, the FTC’s Mission in the last strategic plan focused on “[p]rotecting consumers and competition by preventing anticompetitive, deceptive, and unfair business practices through law enforcement, advocacy, and education without unduly burdening legitimate business activity.”³In this plan, the Mission Statement reads “[p]rotecting the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education.” (emphasis added).

Similarly, the FTC Vision in the new plan is for a “vibrant economy fueled by fair competition and an empowered, informed public,” replacing the prior vision for a “vibrant economy characterized by vigorous competition and consumer access to accurate information.” (emphasis added).

This shifting language is matched by goals centered on the public. The plan also includes provisions designed to aid historically underserved communities, which may be disproportionately affected by fraud and other consumer issues.

More Aggressive Goal-Setting

The three goals remain from the last plan, but have been updated and refined with an expanded focus on protecting the public, not just consumers and competition. The new strategic plan sets out these three goals:

1. Protect the public from unfair or deceptive acts or practices in the marketplace;
2. Protect the public from unfair methods of competition in the marketplace and promote fair competition;
3. Advance the FTC’s effectiveness and performance.

The plan places emphasis on crafting strategies and policies to deter law violations, in addition to taking action against and remedying violations.⁴ For example, Objective 1.1 defines the goal of protecting the public from unfair or deceptive acts or practices in the marketplace to include identifying consumer protection issues and trends and negotiating consent orders and litigated orders that will have significant remedial, precedential, and deterrent effects. This objective is tied to Performance Metric 1.1.4 on the “[p]ercentage of matters seeking significant remedial, precedential, or deterrent effects across the marketplace.”

Another new area of focus is on worker wages and benefits under Objective 2.2, including studying and investigating “non-compete and other potentially unfair contractual terms resulting from power asymmetries between workers and employers.” This objective is part of promoting public awareness and understanding of fair competition and accompanies recent FTC scrutiny of non-compete agreements affecting Americans.⁵

The strategic plan reflects the more aggressive stance the FTC has taken in pursuing enforcement actions and litigation under Chair Khan’s leadership. In line with the strategic plan, businesses can expect continued heightened scrutiny by the FTC, an agency now empowered by broad-ranging guidance to protect the public.

¹ Federal Trade Commission, Strategic Plan for Fiscal Years 2022-2026, https://www.ftc.gov/system/files/ftc_gov/pdf/fy-2022-2026-ftc-strategic-plan.pdf
² See Daniel Gibb et al., US Supreme Court Rules FTC Cannot Seek Restitution, Dentons Client Alert (May 3, 2021), https://www.dentons.com/en/insights/alerts/2021/may/3/us-supreme-court-rules-ftc-cannot-seek-restitution
³ Federal Trade Commission, Strategic Plan for Fiscal Years 2018 to 2022, https://www.ftc.gov/system/files/documents/reports/2018-2022-strategic-plan/ftc_fy18-22_strategic_plan.pdf
⁴ Statement of Chair Lina M. Khan, Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya Regarding the Strategic Plan for Fiscal Years 2022-2026, Commission File No. P261201, August 26, 2022, https://www.ftc.gov/system/files/ftc_gov/pdf/Majority%20Statement.2022-2026%20Strategic%20Plan.pdf
⁵ See Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya In the Matter of ARKO Corp./Express Stop, Commission File No. 2110087, June 10, 2022, https://www.ftc.gov/system/files/ftc_gov/pdf/2110187GPMExpressKhanStatement.pdf