CIPP/US Study Guide
Chapter 5: Federal and State Regulators and Enforcement of Privacy Law

FTC Rulemaking Under Magnuson-Moss

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The FTC's UDAP rulemaking does not use ordinary APA notice-and-comment. It must follow the complex Magnuson-Moss (Section 18) procedures, showing the practices are prevalent, unfair/deceptive, and assessing economic effects. West Virginia v. EPA may narrow this authority.

FTC trade-rule regulations are NOT made under ordinary APA notice-and-comment. They must instead comply with Magnuson-Moss (Section 18), under which the FTC may define a practice as unfair or deceptive only where it has reason to believe the practice is prevalent. The FTC must also establish how the practice is unfair/deceptive and its economic effect on consumers and small businesses.

Don't confuse the two rulemaking tracks

Standard agency rules use APA notice-and-comment. The FTC's unfair/deceptive trade-rule regulations use the slower, more demanding Magnuson-Moss process. Mixing these up is a classic trap.

The 2022 West Virginia v. EPA decision could narrow future FTC rules via the major questions doctrine, shifting from court deference toward closer review of whether Congress gave precise authority.

Key terms - quick answers

What is “Magnuson-Moss”?
The Magnuson-Moss Warranty FTC Improvements Act of 1975 (Section 18), setting complex, lengthy procedures the FTC must follow to make trade-rule regulations on unfair or deceptive practices.
What is “West Virginia v. EPA”?
2022 Supreme Court case applying the 'major questions doctrine,' potentially narrowing the scope of rules the FTC can enact.
What is “Major questions doctrine”?
A doctrine restricting agencies from issuing substantial regulations without precise direction from Congress.

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