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58 Antitrust L.J. 253 (1989-1990)
Advertising Regulation: The States v. FTC

handle is hein.journals/antil58 and id is 331 raw text is: ADVERTISING REGULATION: THE STATES V. FTC TERRY CALVANI* I. INTRODUCTION This article discusses three themes. First, I focus on the mantra recited by some that the Commission should return to the good old days of vigorous advertising enforcement. For example, Robert Abrams, Attor- ney General of New York, has pined for the bygone era when the FTC used to do its job.' I will look at the good old days. They may not have been as good as some may wish to remember. Second, I discuss improvements in the agency's prosecution standard, as reflected in some of the cases the agency has brought recently. Third, I look at what the states are really doing. A review of the record of the state attorneys general in the area of national advertising' may indicate that it is not as sterling as some would have us believe. II. FTC MEMORY LANE: THE FIRST AMENDMENT IN JEOPARDY A review of the Commission's historical record is in order.3 The Coin- * Commissioner, Federal Trade Commission. The views expressed in these remarks are the author's own, and not necessarily those of any other Commissioner. The author wishes to thank Amy Shapiro for her superb assistance in the preparation of this article, and to thank C. Lee Peeler and Collot Guerard for their helpful comments on this and earlier drafts. Address by New York Attorney General Robert Abrams, New York State Broadcasters Ass'n (July 12, 1988). 2 Two years ago, Attorney General Abrams observed that the Commission's failure... has not deterred the state attorneys general from stepping in to protect our constituents with vigorous enforcement and regulatory activity wherever it is needed. Address by Attorney General Robert Abrams, Consumer Assembly '87, Washington, D.C. (Feb. 13, 1987). See also Address by Attorney General Robert Abrams, American Advertising Fed'n Spring Government Affairs Conf., Washington, D.C. (Mar. 21, 1989). Critics of current Commission practices have remarked on the diminishing size of the bound volumes of published Commission decisions. See, e.g., A. Strenio, Jr., FTC Advertis- ing Regulations-New Directions, Remarks to the American Advertising Fed'n, National Advertising Law and Business Conf., Chicago, 5-6 (Nov. 15, 1988). This line of criticism ignores two important issues. First, the FTC Act has been amended to allow the Commission to seek an injunction in U.S. District Court against conduct it has

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