Switching Channels: Consumer Protection to Continue, but in Areas of Priority

On Wednesday, a panel of four practitioners convened at the ABA White Collar Crime Conference to discuss the future of consumer protection enforcement under the Trump administration. While no one from the U.S. Department of Justice’s Consumer Protection Branch was there to provide insider insight, the panel noted that the spate of policy statements, executive orders, and Attorney General memoranda that have been issued in the past six weeks provided a good sense of the new administration’s priorities.

All of the panelists agreed that robust enforcement of consumer protection statutes would continue, as it did during President Trump’s first term in office. Panelists also agreed, however, that enforcement would likely be “channeled,” as one panelist put it, into particular areas of focus. The panelists suggested that products manufactured abroad and imported into the United States were likely to be one of these areas. For example, one panelist indicated that the proliferation of e-cigarette products being imported from China without Food and Drug Administration approval was a prime target for future enforcement action. Another noted that because an overwhelming percentage of the ingredients used in dietary supplements are manufactured overseas, the integrity of these ingredients and the representations made about them to consumers were likely to draw enforcers’ attention.

In the consumer fraud space, one panelist opined that the Federal Trade Commission (FTC) would be increasingly active in investigating deceptive trade practices by social media platforms related to content moderation. The panel discussed a concurring opinion late last year by the FTC’s new Acting Chairman Andrew Ferguson, which advocated for increased investigation of “online platforms for unfair acts or practices relating to their opaque, unpredictable processes for banning users and censoring conduct.”

The panel acknowledged that much remained uncertain in light of staff turnover at some of the relevant agencies. But all agreed that, to the extent that the federal government directed resources away from particular lines of effort, the state attorneys general were ready, willing, and able to pick up the slack.

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