On October 14, 2022, WLF filed a formal comment with the FTC, urging the agency not to exceed its narrow rulemaking authority in promulgating a new federal privacy-data rule. WLF’s comment emphasizes three main points. First, if the Commission’s final rule is to pass muster in federal court, it will need to closely adhere to the statutory limits Congress has imposed on the agency’s rulemaking. Second, the unprecedented breadth and depth of the ANPR suggest that the “major questions doctrine,” which presumes that Congress intends to make major policy decisions itself rather than leave those decisions to agencies, will likely pose a formidable obstacle to any final rule. And third, classifying targeted advertising as an unfair or deceptive practice would harm both consumers and competition.
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