Competition: FTC Policy Statement on Unfair Competition

November 2022

KPMG Insight. The FTC’s new policy statement is consistent with the President’s Executive Order 14036, “Promoting Competition in the American Economy.” It signals the agency’s intention to pursue an expanded number of cases involving potentially unfair competition, and in particular, cases that involve conduct that is not specifically covered by the antitrust law. The policy requires only that the conduct under review has “a tendency to negatively affect competitive conditions” and those conditions may be in initial or developing stages. Further, competitive impacts may include labor market effects (where workers are considered market participants) as well as limitations on potential or nascent competitors. Companies should anticipate heightened scrutiny of their activities and be prepared to explain both quantifiable and nonquantifiable effects on competition. Notably, earlier this year the FTC and DOJ sought public input on their merger guidelines also in response to the Executive Order.