Welcome to the New Federal Trade Commission! But First, a Look Back at FTC Rulemaking

By Leonard L. Gordon, Jay Prapaisilp & Ellis McKennie

With the Biden-Harris administration and Federal Trade Commission (FTC) Chair Lina Khan tenures now completed, we take a look back at the mountain of rulemaking carried out over the last few years. Khan’s ambitious agenda led to an avalanche of new and amended rules. All eyes will now be on Commissioner Andrew Ferguson, who is set to become the new chair, and how he will steer the agency going forward.

Under Khan’s leadership, the FTC issued major rules that attempted to regulate swaths of the U.S. economy. Some rules failed to become effective, as they faced judicial setbacks, such as the Non-Compete Rule, which was set aside by a federal court and the CARS Rule that the FTC stayed after litigation commenced. Similarly, the Negative Option Rule is in the midst of a court challenge that may halt its implementation. Meanwhile, the Unfair or Deceptive Fees Rule was substantially narrowed during the rulemaking process.

Determined to not leave any rule unturned and with days left before the new administration, the Commission issued two Notices of Proposed Rulemaking—one regarding the Business Opportunity Rule and the other on Earnings Claims Regarding Multi-Level Marketing. Both were issued by a 3-2 Democrat majority. The agency’s makeup is set to reverse with Khan’s departure and the nomination of Mark Meador by President Trump.

Below is our roundup of issued FTC Rules.

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