New Administration Outlook: A Return to Regulatory Humility? What Advertisers Can Expect From the FTC

It would be an understatement to say that the first weeks of the second Trump Administration have been intense. Dizzying? Possibly. Whiplashing? On some fronts, yes. Between rolling back DEI and levying, pulling back, and threatening more tariffs, companies are already challenged to determine how best to respond. For those advertisers wondering how the Federal Trade Commission (FTC) will change during Trump 2.0, we can gather some insights from the first Trump Administration, make some educated guesses based on the promotion of Commissioner Andrew Ferguson to be chair of the FTC, and offer some predictions and best practices.

What Did the FTC Do During Trump 1.0?

The FTC in the first Trump Administration turned its enforcement focus to core issues of consumer fraud and deception. Examples include the FTC's enforcement relative to aggressive debt collection tactics such as those alleged against Midwest Recovery Systems; false claims that numerous products could treat or prevent COVID-19; privacy and security enforcement, such as the settlement with Zoom Video Communications, Inc., relating to alleged misstatements about its security features; prohibitions on companies and their employees posting fake product reviews, such as in the Sunday Riley settlement; purported fake charity scams such as Outreach Calling, Inc.; negative option offerings, such as NutraClick, in which the company promoted "free" samples of dietary supplements and beauty products but then allegedly signed consumers up for recurring subscriptions; work from home schemes such as iCloudWorx; and several investigations relating to "Made in USA" claims, a focus borne out of the promise to "Make America Great Again" among others.

Simply put, the FTC continued to do its work to protect consumers albeit its cases did not involve the FTC testing new enforcement theories or making nuanced arguments around substantiation or disclosures. While generally brought under the FTC's Section 5 authority to prohibit deceptive or unfair conduct, the allegations rang of fraud-like practices making for relatively straightforward deception arguments.

What About the FTC During Trump 2.0?

After an aggressive Biden FTC testing new theories, engaging in broad-ranging rulemaking, and searching for civil penalties everywhere possible in the wake of AMG Capital Management, new FTC Chair Ferguson is likely to return the FTC to prioritizing basic consumer fraud and traditional deception.

In a December 2024 dissent, now-Chair Ferguson expressed his views on the commission's role as follows: "The Commission under President Trump will focus primarily on our traditional role as a cop on the beat. We will vigorously and faithfully enforce the laws that Congress has passed, rather than writing them." Under Ferguson, the FTC should not be expected to push the boundaries of enforcement or test the jurisdiction of the FTC as the agency did under Lina Khan. More likely, we should expect a return to what prior Republican commissioners termed "regulatory humility" and, likely, a more hospitable environment for advertisers and advertising practices generally.

The FTC is, by statute, a bipartisan agency with the president's party occupying the majority. While sitting in the minority during the Biden Administration under Chair Lina Khan, then-Commissioner Ferguson voted against the final click-to-cancel rule and issued several sizzling dissents and strongly worded concurrences on a range of issues, including "up to" claims and, not to be forgotten, the Non-Compete Rule. With Ferguson ascending to chair, former Chair Khan has resigned, and the president has nominated attorney Mark Meador as the third Republican commissioner on the five-member commission. According to his law firm profile, Meador is a former "antitrust enforcer at both the Federal Trade Commission, in the Bureau of Competition's Healthcare Division, and in the Transportation, Energy & Agriculture Section of the Department of Justice's Antitrust Division." Democratic Commissioners Slaughter and Bedoya remain, as does Commissioner Holyoak, a Republican.

What Will Happen to Recently Finalized Rules and Biden-Era Policies Toward Emerging Technologies?

Many have wondered whether Congress will use its authority under the Congressional Review Act (CRA) to roll back FTC rules finalized in the waning days of the Biden Administration. For example, the FTC's junk fees rule would be potentially subject to rollback under the CRA. While this could happen, the reality is that the final rule was narrower than what was originally proposed, a change made to secure bipartisan support. It's also worth noting that restrictions on so-called "junk fees" are popular with consumers.

Other policies are likely to change. The FTC's approach to cutting-edge technology, such as AI, is likely to be less skeptical than under Chair Khan. Chair Ferguson and Commissioner Holyoak have both expressed more business-friendly views toward such technologies, including when used for advertising, than those held by the majority under Khan (see here and here). And review and enforcement related to greenwashing and ESG generally may take a backseat—including finalizing the long-awaited updates to the Green Guides.

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While the FTC's focus will shift with the new administration and may take a more business-friendly approach, advertisers should not assume that this means that enforcement is a thing of the past. State attorneys general are likely to step in to fill any perceived enforcement gaps, competitors will utilize avenues such as the National Advertising Division to police the marketplace, and the plaintiffs' bar will continue to pursue new theories. Staying tuned to enforcement developments to help manage advertising and consumer protection risk will continue to pay off.