Unfairness

In addition to its power to regulate deceptiveness, the FTC can regulate marketing practices for unfairness. It is possible for marketers to treat consumers unfairly without deceiving them.

In the past, the unfairness power enabled the FTC to reach a wide variety of marketing practices. Until 1980, the Commission defined unfairness to include "immoral, unethical, oppressive, or unscrupulous conduct." This, many business people felt, allowed the Commission too broad a range of authority. Responding to pressure from Congress, in 1980 the FTC published a Policy Statement on Unfairness that re-defined the scope of this authority.

After 14 years of debate, the FTC Act Amendments of 1994 incorporated a definition of "unfairness" into the Commission's enabling Act. This new definition limits the application of the FTC's unfairness power to an act or practice that:

or is likely to cause ... substantial injury to consumers,
is not reasonably avoidable by consumers themselves,
is not outweighed by countervailing benefits to consumers or to competition.

How this definition will be interpreted by the Commission remains subject to speculation, until some cases of unfairness are decided.