As the Trump administration continues to cut back on existing regulations, Venable attorneys Len Gordon and Shahin Rothermel offered a detailed examination of the Federal Trade Commission’s (FTC) evolving enforcement strategy and whether it is taking a deregulatory posture.
In the latest installment of the "Deregulation Nation" webinar series, the duo explored the politically charged transformation of the agency’s structure, its litigation approach, and how state enforcers and the class-action bar may fill enforcement or regulatory gaps. They detailed how the FTC, under Chairman Andrew Ferguson, has stated its intent to focus on enforcing existing laws while scaling back rulemaking.
Full Republican Control, Rulemaking Reversals, and Workforce Cuts
Gordon highlighted the Trump administration’s reshaping of the FTC through firings and strategic appointments: “The president has fired both Democratic commissioners and indicated that he has no intention to replace them.”
Rothermel contrasted the current regulatory stance with that of the previous administration, referencing a former flurry of rulemaking activity: “Under Commissioner Khan...they were on a rule making blitz.” Despite widespread assumptions that the new FTC would dismantle Khan-era rules, “the FTC is continuing to defend the negative option rule,” Rothermel noted, although implementation has been delayed. The shifting emphasis is also visible in the agency's budget discussions. Ferguson “was quite clear he is shrinking the agency,” said Gordon. “People are being given fork in the road offers: you can retire with a package, or we’ll probably push you out.”
Deregulation Meets Enforcement: Subscription Rules, State Attorneys General, and Class Action Surge
While the FTC's rulemaking agenda has been tempered, its enforcement arm remains active. “We are seeing investigations, we’re seeing civil investigative demands, we are seeing publicly filed lawsuits and settlements,” Rothermel said. The agency continues to defend and enforce the negative option rule governing subscription practices. Gordon warned that a broad provision within the rule regarding misrepresentations generally could function as a “Trojan horse” to extract civil penalties in many circumstances, providing the FTC with leverage in any settlement discussions.
As federal oversight is in flux, states like California and New York are stepping up enforcement. Gordon said that many states “are supplementing their consumer protection laws.” They also noted the rise in class action suits targeting pricing and advertising practices. “We are seeing such a large uptick...at least one lawsuit filed a day,” said Rothermel, referencing California’s junk fee law. She said that plaintiffs are “really taking advantage” of outdated FTC green guides, which are still used by class action plaintiffs in court despite being over a decade old.
Looking Ahead: Strategic Compliance in a Hybrid Regulatory Environment
The FTC's current ambiguity—balancing deregulation with high-profile enforcement—demands vigilance. Gordon noted that “Ferguson’s saying, ‘we’re going to vigorously enforce the laws,’ and at the same time saying, ‘we’re going to get rid of regulation.’” Meanwhile, both speakers emphasized that state and private actors are intensifying their roles, particularly around environmental claims, subscription terms, and pricing disclosures.
Rothermel offered a pragmatic takeaway: “If you’re in the consumer protection, advertising, and marketing space, don’t sleep on compliance.”
To learn more about upcoming webinars in this series, Deregulation Nation: Legal Perspectives on the Changing Rules, click here. The series runs through the summer.