Unfair Acts and Practices: A Revisionist History
48 Pages Posted:
Date Written: May 5, 2020
No phrase is more central to United States consumer protection law than “unfair and deceptive acts and practices”. “UDAP” for short. Of the two prohibitions in UDAP, deception has always been easiest to parse. Unfairness has proven more troublesome. Its unavoidable moral resonance, its essential contestability, and its potential breadth of application open up awesome and terrifying possibilities. A lawyerly mind recoils at such an inchoate and morally resonant standard. The resulting rarity of its usage has left its meaning relatively underdeveloped. Unfairness has become the sort of thing that an enforcement agency or a private litigant would only plead in the alternative or when unable to make out a deception claim under current precedent.
The received wisdom is that the stunted growth of unfairness is as it ought to be. Consumer lawyers even like to scare each other with a morality tale about when FTC of the 1970s got caught up in its own moral superiority flew too close to the sun.
This article explains why this morality tale should be tossed aside. What happened at the FTC in the 1970s was not an eruption of popular discontent at a paternalist agency caught up in its own moral superiority, but rather a well-funded and -coordinated backlash from the businesses that would have had to comply with the FTC’s new regulatory initiatives. It was in fact the regulatory initiatives themselves that were the result of popular discontent channeled through an increasingly well-organized consumer movement. These initiatives—including the effort to regulate advertising directed towards children—had broad support outside the business community. Indeed, they can be seen as the latest iteration of a series of attempts by progressive coalitions to develop the federal government’s capacity to impose standards of business morality by facilitating democratic deliberation over the meaning of “unfair”.
And the imposition of the consumer sovereignty interpretation can be seen as the latest iteration of a series of attempts by big-business-led coalitions to dismantle this capacity by emphasizing the market’s ability to regulate itself via “consumer choice”. Indeed, the morality tale we have been passed down about what happened in the 1970s is part of this attempt. It is history told by the victors. Rethinking this history is a crucial part of democratizing consumer protection law.
Keywords: consumer law, consumer protection, Federal Trade Commission, unfair and deceptive acts and practices
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