Dead End Road: National Petroleum Refiners Association and FTC “Unfair Methods of Competition” Rulemaking

Abstract

The Federal Trade Commission (FTC) has never tried to travel down the road of “unfair methods of competition” (UMC) rulemaking in the nearly 50 years since the D.C. Circuit decided National Petroleum Refiners Association v. FTC. This paper explains how that road is essentially a dead end. Part I discusses the history of the FTC’s rulemaking authority and summarizes arguments in favor of UMC rules. Part II discusses National Petroleum Refiners and explains why it would be overruled using modern principles of statutory interpretation. Part III rebuts the argument that Congress ratified the FTC’s UMC rulemaking authority in Magnuson-Moss and later legislation, and Part IV argues that the subsequent history of the octane ratings rule at issue in National Petroleum Refiners is further evidence that the FTC lacks authority to promulgate UMC rules.