International Law Enforcement
The FTC cooperates on investigations and enforcement with competition, consumer protection, and privacy agencies around the world to halt deceptive, unfair, and anticompetitive business practices that affect U.S. consumers.
The FTC cooperated on 32 merger and anticompetitive conduct cases of mutual concern with international counterpart agencies in calendar year 2020. This included cooperating on the highest annual number of conduct investigations since it began tracking this activity. FTC staff engaged in substantive case cooperation with staff of the competition agencies of Australia, Brazil, Canada, China, the European Union (EU), Germany, Israel, Japan, Mexico, New Zealand, Singapore, South Africa, and the U.K.
The FTC’s case cooperation facilitated consistent approaches and outcomes with other investigating authorities across a range of sectors, including in the digital economy and pharmaceutical and medical device industries. With regard to the latter, the FTC worked with agencies in the EU, Australia, New Zealand, and Canada on the Pfizer (Upjohn) Mylan merger, regularly holding multilateral calls as the investigation and subsequent remedy discussions progressed. The FTC also cooperated with Canada, the EU, Mexico, and South Africa during its review of the AbbVie/Allergan merger, working closely with the staff of the EC to analyze proposed remedies.
The Commission also continued to improve its enforcement cooperation tools. In September 2020, the FTC entered into the Multilateral Mutual Assistance and Cooperation Framework (MMAC) to promote enhanced case cooperation among the U.S. antitrust agencies and the competition agencies of Australia, Canada, New Zealand, and the U.K. The MMAC provides the basis for additional agreements that would permit sharing confidential information and investigative assistance between the parties.
To further promote collaboration on cross-border competition cases, the FTC also exchanges experience and enforcement techniques with its counterpart agencies through bilateral engagement, technical assistance, and participation in multilateral fora. In November 2020, for example, senior merger case handlers from the antitrust agencies of the U.S., Canada, and Mexico convened virtually to address merger investigative process and techniques, maintaining their annual roundtable that facilitates effective regional cooperation.
Through the FTC’s technical assistance program, staff provided in-person competition law enforcement training to case teams in Bahrain, India, Indonesia, and Peru, as well as a regional program for ASEAN countries. We placed resident advisors in the Antimonopoly Committee of Ukraine, where we also engaged in competition advocacy to and education of ministries and the judiciary. Following pandemic-related travel restrictions, the FTC continued its technical assistance program by conducting virtual training for competition agency staff from Mexico, Nigeria, Peru, and Ukraine, and regional programs for agencies in Africa, the Caribbean, and Eastern Europe.
Consumer Protection and Privacy Law
In the consumer protection area, the FTC engaged in enforcement-related mutual assistance with foreign agencies or multilateral organizations in 41 consumer protection and privacy matters. Foreign authorities assisted the FTC by sharing consumer complaints, obtaining corporate records, and providing other investigative information.
A key tool for the FTC to combat cross-border fraud and other misconduct that harms American consumers is the SAFE WEB Act. The Act confirms the FTC’s statutory authority to sue foreign wrongdoers for conduct with a nexus to the U.S. and supports information sharing and investigative assistance with the agency’s foreign counterparts. These efforts are even more critical in the current COVID-19 environment. First passed in 2006, and renewed in 2012, the Act was scheduled to sunset in 2020. Throughout the past year, the FTC worked with members of Congress to obtain its reauthorization. On September 24, 2020, Congress reauthorized the SAFE WEB Act, and the legislation was signed into law on October 20.
The Commission has continued to rely on the SAFE WEB Act’s provisions, which allow the FTC to reach foreign conduct that has a “reasonably foreseeable” effect on U.S. consumers or that involves “material conduct” in the U.S., as the basis for challenging harmful practices by foreign defendants. For example, the FTC sued On Point Global, LLC, a sprawling international scheme that used a network of companies, many located abroad, to operate hundreds of websites that falsely promised consumers quick and easy access to government services, such as driver’s license renewals. The scheme induced consumers to give out their credit card information, personal data, or both. The FTC also reached settlements with a Canadian-based payment processing company, RevenueWire, and its chief executive. The defendants paid $6.75 million to settle charges that they laundered credit card payments for scammers, including for two tech support scams that the FTC had previously sued.
The FTC used the SAFE WEB Act’s investigative assistance and information-sharing provisions to work with foreign authorities in a wide range of actions, including matters relating to COVID-19. This year, for example, the FTC used its SAFE WEB authority to share information with foreign law enforcement agencies about companies based in their jurisdictions that have been facilitating robocalls for COVID-19-related government imposter scams. The FTC referred to foreign counterparts its warning letters to foreign companies that made unsubstantiated claims that their products and therapies could treat, prevent, or cure COVID-19. In response, some foreign agencies issued their own cease-and-desist letters or took other actions against companies in their jurisdictions. To date, most of the foreign entities that received warning letters have complied with the FTC’s request to cease making all such claims for products that they promote or make available in the U.S. The FTC also pursued additional enforcement cooperation with foreign counterparts on COVID-19 matters, including by leading the International Consumer Protection and Enforcement Network (ICPEN) joint sweep on COVID-19 scams together with Colombia’s Superintendency of Industry and Commerce (SIC).
Along with joint work on COVID-19, the FTC continued work on joint projects with foreign counterparts through multilateral organizations including ICPEN, the Global Privacy Enforcement Network (GPEN), the Unsolicited Communications Working Group (UCENet), and the International Mass Marketing Fraud Working Group (recently renamed the Global Anti-Fraud Enforcement Network (GAEN). Members of GAEN, which includes both civil and criminal agencies, pursued coordinated actions against tech support scams that resulted in arrests, civil injunctions, and coordination with Indian law enforcement on India-based call center fraud. The FTC entered into an updated memorandum of understanding this year with Nigeria’s Federal Competition and Consumer Protection Commission, and Nigeria’s Economic and Financial Crimes Commission, to cooperate on consumer fraud investigations and enforcement.
The FTC also expanded its online tools for sharing data about international scams, launching two new interactive dashboards that provide details about international complaints submitted to Consumer Sentinel and to econsumer.gov, a site created by ICPEN members to gather and share consumer complaints about international scams. With Brazil’s National Secretary of Consumer Protection (SENACON) and Colombia’s SIC joining econsumer.gov this year, the econsumer.gov initiative now includes agencies in 41 countries. Econsumer.gov complaints help inform the FTC’s enforcement. For example, the agency received hundreds of complaints from consumers located in Canada and more than fifty other countries, in addition to thousands from U.S. consumers, against online retailer Fashion Nova for its ecommerce practices. The company agreed to pay $9.3 million to settle the FTC’s allegations that it failed to notify customers about shipping delays and offer them the right to cancel with a full refund.
International Policy Initiatives
The FTC promotes sound approaches to competition, consumer protection, and privacy issues by building relationships with counterpart agencies around the world.
On the competition front, the FTC continued to work bilaterally and in multilateral bodies such as the International Competition Network (ICN), the Organization for Economic Co-operation and Development (OECD), the UNCTAD, and the Inter-American Competition Alliance on international convergence toward sound enforcement, policy, and procedures.
FTC officials held discussions with senior officials from counterpart agencies, including from Australia, Barbados, Brazil, Canada, Chile, the EU, India, Japan, Mexico, Namibia, New Zealand, South Africa, Ukraine, and the U.K. on competition policy issues including dominance in digital markets, competitor collaborations, consummated mergers, and competition in digital platform markets.
The FTC continued as a leader in the ICN and a highlight of the ICN year was co-chairing the first virtual ICN Annual Conference with the DOJ in October. The conference was a tremendous success, attracting over 2,500 attendees from around the world, and provided an opportunity to promote convergence and showcase the U.S. approach to competition law and policy.
As in past years, the Commission served on the ICN’s Steering Group where it worked with counterpart agencies to advance best practices in competition law and policy. The FTC was a significant contributor to new ICN work on mergers and dominance in digital markets and on the competition assessment of laws and regulations. The FTC contributed to a number of key ICN projects, including a Steering Group project on the interface between competition, data privacy, and consumer protection in light of emerging digital economy issues. The Commission also led the drafting of the ICN Steering Group Statement: Competition during and after the COVID-19 Pandemic, which provides advice to competition agencies on dealing with the related challenges of the pandemic and its economic consequences.
The FTC also continued to lead the ICN’s Promotion and Implementation Working Group, which promotes use of ICN work by member agencies, as well as the ICN Training on Demand Project, which continues to build a comprehensive curriculum of training materials that serves as a virtual university on competition law and practice for competition agencies. The past year also marked the beginning of FTC’s leadership of an ICN-wide self-assessment and strategic review to develop recommendations on the network’s operations and goals as it enters its third decade in 2021.
In the OECD, the Commission helped lead the work of the Competition Committee, playing a key role in developing long-term projects on competition in the digital economy and market studies, and collaborating on projects addressing the application of competition laws to intellectual property rights and international cooperation. This year, the FTC served on a group tasked with developing the joint OECD/ICN Report on International Cooperation in Competition Enforcement, released in January 2021.
The FTC submitted several policy papers in advance of Competition Committee policy roundtables on issues including: the acquisition of nascent potential competitors; the role of competition policy in promoting economic recovery; and competition issues involving consumer data rights. Senior agency representatives participated in these sessions as well as in policy discussions on timely subjects such as competition policy responses to the COVID-19 crisis.
The FTC also continued to work with other U.S. government agencies to address competition issues that implicate broader U.S. policy interests, such as free trade agreement negotiations with the U.K. and with Kenya.
Consumer Protection and Privacy
In the consumer protection area, the FTC continued to work this year to develop market-oriented policies that benefit U.S. consumers.
During 2020, the FTC engaged on over 75 policy matters to promote sound consumer protection and privacy policies. In particular, the FTC provided input to international policy organizations such as the OECD, UNCTAD, the OAS, APEC, and the Global Privacy Assembly, as well as regional networks including the Asia Pacific Privacy Authorities, the African Consumer Protection Dialogue, and FIAGC.
The FTC holds formal leadership roles in the OECD’s consumer committee and its privacy committee, focusing the OECD’s digital economy work on new and emerging issues that have direct effects on U.S. consumers. For example, the agency helped the OECD formulate its recommendations for protecting online consumers during the COVID-19 crisis. The FTC also played a leading role in the OECD’s privacy and consumer protection work, championing empirical work on measuring consumer detriment and on the effects of online disclosure about personalized pricing on consumers. The FTC provided its experience on privacy and data security issues to OECD members through written comments and virtual participation in seminars and meetings on data localization, data portability, and children’s online privacy and safety.
The FTC continued its decades-long work to ensure strong privacy protections for consumer data through cross-border data transfer mechanisms, such as the EU-U.S. Privacy Shield Framework (and its predecessor program, the U.S.-EU Safe Harbor Framework), the Swiss-U.S. Privacy Shield Framework, and the Asia-Pacific Economic Cooperation Cross-Border Privacy Rules System (APEC CBPRs). On July 16, 2020, the European Court of Justice (ECJ) issued a judgment declaring invalid under EU law the European Commission’s decision of July 12, 2016 on the adequacy of the EU-U.S. Privacy Shield Framework. On September 8, 2020, the Swiss Federal Data Protection and Information Commissioner issued a position statement adopting the ECJ’s views.
The ECJ’s decision concerned national security access to personal data, not commercial consumer privacy promises enforced by the FTC. It did not affect the validity under U.S. law of the FTC’s decisions and orders, which typically prohibit companies not just from misrepresenting their compliance with or participation in the Privacy Shield Framework, but also in any other privacy or data security programs sponsored by the government or any self-regulatory or standard-setting organization. Following the ECJ’s decision, the FTC stated that companies should continue to comply with their ongoing obligations with respect to transfers made under the Privacy Shield Framework.
The FTC conducted several technical assistance and capacity-building sessions for developing consumer protection and privacy agencies, adapting its activities to the COVID-19 environment. Early in 2020, the FTC conducted in-person training sessions in India. Following COVID-19 shutdowns, the agency organized or participated in virtual capacity-building programs with agencies in Bahrain, Bermuda, India, Peru, Singapore, and Ukraine. The FTC also hosted, with COMESA, a virtual meeting of the African Consumer Protection Dialogue, which included more than 20 African countries, the U.S. Consumer Product Safety Commission, and the Australia Competition and Consumer Commission. Discussions focused on consumer remedies and redress, cross-border cooperation, consumer complaints, consumer education and business guidance, consumer data privacy, and product safety. These sessions informed foreign regulators and law enforcers about the FTC’s approach to emerging digital consumer protection issues, as well as practical investigational skills and tools for cross-border cooperation.
Finally, through its International Fellows Program, the FTC welcomed foreign officials from competition and consumer protection agencies in Canada, Japan, and Zambia to work alongside FTC staff, providing the Fellows with a deeper understanding of FTC practices and approaches. Since its inception, the FTC has hosted over 130 officials from over 40 jurisdictions. The agency looks forward to resuming the program when pandemic travel bans are lifted.