Last week, the Federal Trade Commission published a Federal Register notice seeking public comments on “marketing activities and expenditures of the food industry targeted toward children and adolescents.” Last November, Congress ordered the FTC to prepare a report on this subject by July 1 of this year. The FTC is now seeking “empirical data” and other relevant information for use in the report.A public comment request is unremarkable and generally unobjectionable. But the FTC’s notice also states that
[t]he FTC is interested in receiving publicly available information that can be used to prepare the report. However, because it is unlikely that information sufficient to prepare the report is publicly available, the Commission likely will later issue orders under Section 6(b) of the FTC Act (15 U.S.C. Â§ 46(b)) to obtain needed information from food industry members.
In other words, the FTC will force companies to turn over private information without a subpoena. The statute cited by the FTC purportedly authorizes the agency
To require, by general or special orders, persons, partnerships, and corporations, engaged in or whose business affects commerce . . . to file with the Commission in such form as the Commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the Commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective persons, partnerships, and corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the Commission may prescribe, and shall be filed with the Commission within such reasonable period as the Commission may prescribe, unless additional time be granted in any case by the Commission. (Emphasis added.)
Calling a subpoena a “general or special order” is a sleight-of-hand designed to confuse an unambiguous constitutional violation. The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.)
There is no “probable cause” for the FTC to forcibly search any company under the pretext of preparing a report for Congress. Indeed, the legislative language authorizing the report only maintains that Congress “is concerned about the growing rate of childhood and adolescent obesity and the food industry’s marketing practices for these populations.” Congressional “concern” about a subject beyond the federal government’s enumerated powersâ€”the framers gave Congress the power to fix the “standard of weights and measures,” not the weights of childrenâ€”is not probable cause.
[Previously posted on the Voluntary Trade Council Weblog.]