FTC 2023 Game Manual: A Comprehensive Overview (as of 12/03/2025)
The FTC’s 2023 initiatives significantly reshaped consumer protection, focusing on eliminating “junk fees” and scrutinizing mergers.
New guidelines and rules, like the Noncompete Rule and the Negative Option Rule, aim for transparent pricing and fair competition,
though recent political shifts may impact their future enforcement and implementation, as of today, December 3, 2025.
The Federal Trade Commission (FTC) embarked on a series of ambitious initiatives throughout 2023, fundamentally altering the landscape of consumer protection and antitrust enforcement. These efforts, continuing into 2025, represent a significant shift in the agency’s approach to regulating business practices and safeguarding consumer interests. A core tenet of these initiatives involved tackling what the FTC termed “junk fees” – hidden, unavoidable charges that inflate the true cost of goods and services.
Beyond fee transparency, the FTC aggressively pursued revisions to merger guidelines, collaborating with the Department of Justice to establish a more stringent framework for evaluating potential anti-competitive mergers. Simultaneously, the agency proposed a sweeping rule aimed at curtailing the use of noncompete agreements, arguing they stifle worker mobility and innovation. These actions, coupled with the implementation of the Negative Option Rule (Click-to-Cancel), demonstrate a broad commitment to empowering consumers and fostering a more competitive marketplace. However, recent political changes, including a forthcoming Republican majority at the FTC, introduce uncertainty regarding the long-term viability of some of these initiatives.
II. The Core Focus: Eliminating “Junk Fees”
A central pillar of the FTC’s 2023 agenda was the aggressive pursuit of eliminating “junk fees” – hidden or misleading charges tacked onto the initial price of products and services. This initiative directly addressed consumer complaints regarding a lack of price transparency, particularly within sectors like hotels, vacation rentals, and ticket sales. The FTC’s new rule mandates that businesses disclose all mandatory fees upfront, enabling consumers to make informed purchasing decisions and compare prices accurately.
This focus wasn’t merely about disclosure; it aimed to fundamentally alter pricing practices. The FTC argued that these fees often exploit consumers and distort market competition. By requiring upfront pricing, the agency sought to force businesses to compete on genuine value rather than hidden charges. While the rule faced legal challenges, and its future is now uncertain due to shifting political dynamics within the FTC, the initial impact prompted some companies to proactively adjust their pricing structures. The push for increased fee disclosure is expected to continue, even with potential regulatory rollbacks.
III. The Rule on Unfair or Deceptive Fees ‒ Detailed Breakdown
The FTC’s Rule on Unfair or Deceptive Fees, finalized in 2023, targets a broad range of hidden mandatory fees, aiming for transparent pricing across various industries. It prohibits businesses from charging fees for services consumers reasonably assume are included in the advertised price. This includes charges for things like resort fees, “convenience” fees, and processing fees that aren’t clearly and conspicuously disclosed upfront.
The rule requires businesses to display the full cost of a product or service – including all unavoidable fees – from the very beginning of the transaction. This applies to online, in-store, and over-the-phone sales. While the rule’s enforcement is currently in flux due to legal challenges and a potential shift in FTC leadership, its core principle remains: consumers deserve to know the true cost of a product before they commit to buying it. The rule’s ultimate fate remains uncertain, but it signaled a significant change in the FTC’s approach to consumer protection.
III.a. Mandatory Fee Disclosure Requirements
The FTC’s rule mandates that businesses clearly and conspicuously disclose all fees associated with a product or service before a consumer incurs any charges. This means displaying the total cost, including unavoidable fees, upfront in advertising and at the initial stages of the buying process. “Hidden” fees, those not disclosed until the final checkout stage, are specifically targeted.
The disclosure must be unavoidable; consumers shouldn’t have to hunt for fee information. The rule emphasizes that fees are considered unavoidable if they are required for all or most consumers. Businesses must show the fee amount, or a reasonable estimate, and explain what the fee covers. This applies to both online and offline transactions, ensuring consistent transparency. The goal is to allow consumers to make informed decisions and compare prices accurately, fostering competition and preventing deceptive practices. Failure to comply could result in penalties and legal action.
III.b. Impact on Hotels and Vacation Rentals
The FTC’s new rule significantly impacts hotels and vacation rentals by requiring them to display all mandatory fees – such as resort fees, cleaning fees, and facility fees – upfront in their advertised prices. Previously, these fees were often disclosed only later in the booking process, leading to “sticker shock” for consumers. Now, the initial price shown must reflect the total cost a consumer will pay.
This change forces greater price transparency, allowing travelers to easily compare options and avoid unexpected charges. Hotels and rentals can still charge fees, but they must be included in the initial advertised price. The FTC aims to end the practice of deceptively low initial prices that are inflated by hidden fees. This impacts online travel agencies as well, requiring them to adhere to the same disclosure standards. Compliance is crucial to avoid potential FTC enforcement actions.
III.c. Impact on Ticket Sellers
The FTC’s rule extends its fee disclosure requirements to ticket sellers, encompassing primary and secondary market platforms. This means that all mandatory fees – including processing fees, service fees, and delivery fees – must be included in the advertised price of tickets from the outset. Previously, these fees were often added late in the purchasing process, significantly increasing the final cost for consumers.
This change directly addresses the common complaint of unexpectedly high ticket prices. Ticket sellers are now obligated to show the full cost upfront, enabling consumers to make informed decisions and compare prices accurately. The rule applies to concert tickets, sporting events, and other forms of entertainment. Failure to comply could result in FTC enforcement actions, including penalties and required refunds. The goal is to foster transparency and eliminate deceptive pricing practices within the ticketing industry, benefiting event attendees.
IV. The Proposed Noncompete Rule & Its Current Status
The FTC’s proposed Noncompete Rule, unveiled in 2023, aimed to significantly curtail the use of noncompete agreements, arguing they stifle competition and limit worker mobility. The initial goal was to ban most new noncompete clauses, allowing employees to freely pursue new opportunities and potentially increasing wages. However, the rule faced immediate and substantial legal challenges.
Federal courts in Texas and Florida issued decisions blocking the rule’s implementation, citing concerns about the FTC’s authority to enact such a sweeping change. The FTC subsequently appealed these decisions, but on September 5, 2025, the agency voluntarily dismissed its appeals. This move effectively halts the rule, with a Republican majority at the FTC likely to withdraw pending appeals entirely, signaling a likely end to the proposed ban on noncompete agreements, at least in its original form.
IV.a. Initial Goals of the Noncompete Rule
The core objective of the FTC’s 2023 proposed Noncompete Rule was to foster a more dynamic and competitive labor market. The FTC argued that overly broad noncompete agreements suppress wages, hinder innovation, and limit entrepreneurial opportunities for millions of American workers. By restricting employees’ ability to seek better employment, these agreements were seen as detrimental to economic growth.
Specifically, the rule aimed to ban new noncompete clauses, with limited exceptions for senior executives. The FTC believed this would unlock worker mobility, encouraging job switching and leading to increased earnings; Furthermore, the agency anticipated that a more competitive labor market would incentivize companies to invest in innovation and improve working conditions to attract and retain talent, ultimately benefiting the overall economy.
IV.b; Legal Challenges and Court Decisions (Texas & Florida)
The FTC’s Noncompete Rule faced immediate and significant legal challenges following its initial announcement. Businesses, particularly those relying heavily on noncompete agreements to protect trade secrets and customer relationships, filed lawsuits in multiple jurisdictions. Crucially, federal courts in both Texas and Florida issued rulings halting the implementation of the rule, citing concerns about the FTC’s authority to enact such a sweeping regulation.
These courts questioned whether the FTC had the statutory authority to issue a rule with such broad implications for the labor market, arguing that the agency had overstepped its bounds. The decisions effectively prevented the rule from taking effect nationwide while the legal battles continued. These initial setbacks represented a major blow to the FTC’s efforts to restrict noncompete agreements and signaled a potentially difficult path forward for the agency.
IV.c. Voluntary Dismissal of FTC Appeals (September 5, 2025)
On September 5, 2025, the Federal Trade Commission made a significant strategic decision, voluntarily dismissing its appeals of the unfavorable rulings issued by federal courts in Texas and Florida regarding the proposed Noncompete Rule. This move effectively conceded defeat in the initial legal battles surrounding the rule’s validity and enforceability. The FTC’s decision to withdraw its appeals came amidst growing uncertainty about the rule’s future and the likelihood of ultimately prevailing in the higher courts.
Analysts suggest this dismissal was a pragmatic response to the legal landscape and anticipated outcomes. It signaled a shift in the FTC’s approach, acknowledging the substantial legal hurdles and the potential for continued setbacks. This action effectively halted further litigation on the original rule, paving the way for potential revisions or a completely new regulatory approach to address noncompete agreements, though its future remains uncertain.
V. 2023 Merger Guidelines: A New Approach to Antitrust Enforcement
The 2023 Merger Guidelines, jointly published by the Federal Trade Commission and the Department of Justice, represent a substantial overhaul of antitrust enforcement principles. Unveiled in December 2023 and now in effect, these guidelines signal a more aggressive stance towards mergers and acquisitions, aiming to protect competition and prevent market concentration. Chairman Andrew Ferguson’s memo highlighted the importance of these updated standards.
These guidelines depart from previous approaches by emphasizing a more proactive and skeptical review of proposed mergers. They aim to address perceived shortcomings in earlier enforcement practices, particularly concerning the rise of dominant firms and the potential for anticompetitive behavior. The guidelines are designed to provide clearer guidance to businesses and legal professionals regarding the FTC and DOJ’s scrutiny of merger activity, fostering a more competitive marketplace.
V.a. Joint Publication by FTC & Department of Justice
The 2023 Merger Guidelines weren’t crafted in isolation; they represent a collaborative effort between the Federal Trade Commission (FTC) and the Department of Justice (DOJ). This joint publication signifies a unified front in antitrust enforcement, demonstrating a commitment to consistent application of competition law across federal agencies. Historically, both agencies have independently reviewed mergers, but this coordinated approach aims to streamline the process and enhance effectiveness.
This collaboration underscores the shared belief that robust antitrust enforcement is crucial for a healthy economy. By pooling expertise and resources, the FTC and DOJ seek to identify and challenge potentially anticompetitive mergers more effectively. The joint guidelines provide businesses with a single, authoritative source of information regarding the agencies’ enforcement priorities and analytical frameworks, reducing ambiguity and promoting compliance. This unified approach is a key feature of the new enforcement landscape.
V.b. Key Principles of the New Merger Guidelines
The 2023 Merger Guidelines introduce significant shifts in how the FTC and DOJ evaluate proposed mergers. A core principle is a heightened scrutiny of market concentration, moving away from reliance on solely quantifiable metrics. The guidelines establish presumptions of illegality based on market share, signaling a more aggressive stance against consolidation. Specifically, mergers leading to high levels of concentration—defined by specific market share thresholds—will face increased challenges.
Furthermore, the guidelines emphasize the potential for dominant market positions to stifle competition. A presumption of illegality arises when a merger creates or enhances a dominant firm’s ability to control prices or exclude competitors. This reflects a concern that even mergers not resulting in high concentration can be harmful if they empower a single firm to dictate market terms. These principles represent a fundamental change in antitrust enforcement, prioritizing proactive prevention of anticompetitive outcomes.
V.b.i. Presumption of Illegality Based on Market Share
The 2023 Merger Guidelines establish a clear presumption of illegality when a merger significantly increases market concentration, as measured by the Herfindahl-Hirschman Index (HHI). Specifically, mergers resulting in substantial increases to already concentrated markets—defined by specific HHI thresholds—are viewed with heightened skepticism. This means the burden shifts to the merging parties to demonstrate that the transaction will not harm competition.
The guidelines detail specific HHI levels that trigger this presumption, signaling a more proactive approach to blocking potentially anticompetitive mergers. This focus on market share reflects a belief that concentrated markets are more susceptible to collusion and the exercise of market power. The FTC and DOJ will now more readily challenge mergers that lead to a small number of firms controlling a large percentage of the market, even absent evidence of explicit anticompetitive conduct.
V.b.ii. Presumption of Illegality Based on Dominant Market Position
The new Merger Guidelines also introduce a presumption of illegality when a merger would create or enhance a dominant market position. This isn’t solely about high market share; it considers factors like barriers to entry, the presence of network effects, and the ability to control essential inputs or distribution channels. A dominant firm, according to the guidelines, possesses significant power to raise prices, reduce output, or stifle innovation without facing meaningful competitive constraints.
This presumption is particularly relevant in industries characterized by high levels of concentration or significant economies of scale. The FTC and DOJ will scrutinize mergers that could solidify a firm’s dominance, even if the resulting market share doesn’t reach the thresholds triggering the market share presumption. The guidelines emphasize that maintaining a competitive landscape requires preventing the emergence of firms with unchecked market power.
V.c. Effective Date and Implementation
The 2023 Merger Guidelines were unveiled in December 2023 and are now officially in effect, marking a significant shift in antitrust enforcement. However, the implementation isn’t a sudden overhaul. Agencies like the FTC and Department of Justice are integrating these guidelines into their existing review processes for mergers and acquisitions. This means companies considering deals should proactively assess their transactions against the new principles.
FTC Chairman Andrew Ferguson issued a memo to employees on February 18th, emphasizing the importance of applying the updated guidelines. While not legally binding regulations, these guidelines heavily influence agency investigations and litigation strategies. Companies can expect increased scrutiny, particularly regarding potential competitive harms and the definition of relevant markets. The guidelines signal a more aggressive approach to challenging mergers perceived as anti-competitive, demanding thorough analysis and robust defense strategies.
VI. Political Shifts and the Future of FTC Regulations
A significant change is occurring at the Federal Trade Commission: Republicans are poised to gain a majority of the five-member commission. This shift in power dynamics is expected to dramatically alter the agency’s regulatory agenda and enforcement priorities. A key consequence of this change will likely be the withdrawal of pending appeals related to several key FTC initiatives, effectively halting their progress.
Specifically, the FTC’s appeals concerning the noncompete rule, previously challenged in Texas and Florida courts, are anticipated to be dismissed. This voluntary dismissal, signaled as of September 5, 2025, suggests a move away from aggressive regulatory action and a potential re-evaluation of existing rules. The incoming Republican majority may prioritize a more business-friendly approach, potentially leading to a rollback of regulations perceived as burdensome or overreaching. This represents a substantial turning point for FTC policy.
VI.a. Republican Majority at the FTC
The impending shift to a Republican majority at the Federal Trade Commission marks a pivotal moment for antitrust enforcement and consumer protection. This change, anticipated to occur soon, will fundamentally alter the agency’s direction, signaling a potential departure from the more assertive stance adopted under the previous administration. The new composition of the FTC is expected to prioritize a less interventionist approach, focusing on fostering a more business-friendly regulatory environment.
This transition implies a re-evaluation of ongoing cases and proposed rules, including those related to “junk fees,” noncompete agreements, and merger guidelines. The Republican commissioners are likely to scrutinize existing regulations, potentially leading to modifications or even outright reversals of policies deemed overly restrictive. This shift reflects a broader ideological divergence regarding the appropriate role of government in regulating the marketplace, promising a significant reshaping of the FTC’s operational landscape.
VI.b. Potential Withdrawal of Pending Appeals
A key consequence of the incoming Republican majority at the FTC is the likely withdrawal of pending appeals concerning several key regulatory actions. Specifically, the FTC’s appeals regarding the rulings against its proposed noncompete rule, previously challenged in Texas and Florida federal courts, are now poised for dismissal. On September 5, 2025, the FTC voluntarily dismissed its appeals, foreshadowing a broader trend of retracting legal challenges to decisions unfavorable to its prior agenda.
This strategic retreat signals a significant shift in the agency’s legal strategy and a willingness to accept judicial limitations on its authority. The withdrawal effectively halts further litigation on these matters, potentially solidifying the court rulings against the FTC’s initial attempts to implement stricter regulations. This move underscores the impact of the changing political landscape on the FTC’s enforcement priorities and its overall approach to consumer protection and antitrust oversight, effectively “killing the rule”.
VII. The Negative Option Rule (Click-to-Cancel)
The FTC’s Negative Option Rule, often referred to as the “Click-to-Cancel” rule, represents a significant step towards simplifying subscription cancellations for consumers. Implemented in October 2024, this rule directly addresses the frustrating practice of businesses making it excessively difficult to end recurring charges for goods or services. The core principle revolves around requiring businesses to provide easy and straightforward cancellation processes, mirroring the simplicity of initial sign-up procedures.
Specifically, the rule mandates that cancellation methods be as easy as the method used to enroll. This means if a subscription was initiated online, consumers must be able to cancel online with equal ease. Businesses are prohibited from requiring unnecessary steps, like lengthy phone calls or complicated mail-in forms. This rule aims to curb “dark patterns” and deceptive tactics designed to retain customers against their will, fostering greater transparency and control for consumers over their financial commitments.
VII.a. Implementation Timeline (October 2024)
The rollout of the Negative Option Rule, commonly known as the Click-to-Cancel rule, followed a deliberate timeline culminating in full implementation by October 2024. The Federal Trade Commission (FTC) initially proposed the rule to address concerns regarding deceptive subscription practices and the difficulties consumers faced when attempting to cancel recurring charges. Following a period of public comment and review, the final rule was published, providing businesses with a timeframe to adjust their cancellation procedures.
October 2024 marked the compliance deadline, requiring all businesses subject to the rule to adhere to the new standards for easy cancellation. This included ensuring online cancellations were as simple as sign-up, eliminating excessive hurdles, and providing clear instructions. The FTC actively monitored compliance post-implementation, signaling its commitment to enforcing the rule and protecting consumers from unfair or deceptive practices related to negative option subscriptions. Businesses failing to comply faced potential legal action.
VII.b. Requirements for Easy Cancellation Processes
The cornerstone of the Negative Option Rule centers on simplifying cancellation processes for consumers. The FTC mandates that cancellations be as straightforward as the initial subscription enrollment. This means businesses cannot impose unreasonable hurdles or require excessive steps to terminate a recurring charge. Specifically, if a subscription was initiated online, cancellation must also be possible through a simple online process – ideally, with just a few clicks.
Furthermore, the rule prohibits businesses from requiring consumers to jump through hoops like lengthy phone calls with customer service representatives or submitting written requests via mail. Clear and conspicuous instructions for cancellation must be readily available. The FTC emphasizes transparency, demanding businesses clearly disclose cancellation policies upfront. These requirements aim to empower consumers and prevent them from being trapped in unwanted subscriptions, fostering fairer business practices and protecting consumer rights.
VIII. Ongoing Trends: Increased Fee Disclosure
Despite potential regulatory shifts, a discernible trend towards heightened fee disclosure persists across various industries. The FTC’s push for transparency, even with a changing political landscape, has already spurred many companies to proactively reveal previously hidden costs. This shift isn’t solely driven by compliance; consumer demand for upfront pricing is increasing, incentivizing businesses to adopt more honest practices to maintain customer trust and loyalty.
Hotels, ticket sellers, and subscription services are leading the charge, integrating all-in pricing displays into their platforms. While a comprehensive rule may be less likely under a Republican-led FTC, the market pressure for clarity remains strong. This ongoing trend suggests that consumers will continue to expect, and businesses will increasingly provide, a complete picture of costs before a purchase is finalized, even without strict enforcement of specific regulations.
IX. Analysis of Anderson Kill’s Article on the Noncompete Rule
Anderson Kill’s analysis, as presented in their modified article published in the Intelligencer, accurately predicts the likely demise of the FTC’s proposed Noncompete Rule. Authors Neil Schur and Bennett Pine correctly assessed the legal vulnerabilities and the shifting political climate surrounding the rule, forecasting its ultimate failure following court challenges in Texas and Florida. Their assessment highlights the FTC’s voluntary dismissal of appeals on September 5, 2025, as a pivotal moment.
The article effectively conveys that, while the FTC initially aimed to protect worker mobility and foster competition, the rule faced insurmountable legal hurdles and lacked sufficient support to withstand ongoing challenges. Anderson Kill’s perspective underscores the importance of understanding the interplay between regulatory ambition and judicial review, particularly when dealing with complex legal issues and a potentially hostile political environment. The analysis provides a pragmatic view of the rule’s fate.
