During a generally friendly confirmation hearing Tuesday, members of the Senate Commerce Committee quizzed Federal Trade Commission nominees Jon Leibowitz and Maureen Ohlhausen on topics ranging from food marketing to online privacy to agency authority.
Leibowitz, who has been chair of the agency since March 2009 and is nominated for a second term, did most of the talking. “We are a small agency with a big mission,” he said, boasting that the FTC since 2009 has brought 90 cases against “last dollar frauds” such as sham debt relief and phony job opportunities, more than 30 data security cases and nearly 80 cases for violations of the Do Not Call registry.
Ohlhausen, a veteran FTC staffer who is currently a partner at Wilkinson Barker Knauer in Washington, said she hoped her “knowledge of the commission and its many capabilities, combined with my expertise in consumer protection and competition, will help the agency fulfill its mission to protect consumers.”
A favorite topic for the senators was the FTC’s pending voluntary guidelines for foods marketed to children. Industry groups have loudly complained that the proposed guidelines are too restrictive, and that they won’t really be voluntary.
Leibowitz stressed that the guidelines are unenforceable and confer no private right of action. He also sympathized with critics that complained too many foods don’t pass muster, noting that his daughter liked to eat Special K and low-fat yogurt for breakfast. “I thought it was a triumph of parenting,” he said, only to realize the meal did not meet the draft plan’s “healthy” standards.
Sen. Kelly Ayotte (R-N.H.) asked about the “proper limits of FTC authority under Section Five” of the FTC Act, which bars unfair or deceptive acts. Leibowitz said the “touchstone has always been harm to the competitive process, to consumers, to competition.” During his tenure as chairman, he said that Section Five has only been invoked twice – in the cases against Intel Corp. and U Haul International Inc., which both settled in 2010. (Leibowitz also called Section Five “a modest penumbra around the antitrust statute.” Ayotte replied, “I love the word ‘penumbra,’ but it’s a word only a lawyer can love.”)
Sen. John "Jay" Rockefeller IV (D-W.Va.) asked about possible Do Not Track rules for Internet users. Leibowitz said he’s been “surprised at how much support” tech companies and advertisers have given the concept. “If consumers have more trust, they’ll do more commerce on the Internet,” he said, adding that activation for consumers should be as simple as one click.
At the hearing, the senators also considered the nomination of Rebecca Blank to serve as deputy secretary of the Commerce Department.
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