The Role of Advisory Opinions and the Business Review Procedure

• DOI: 10.1177/0003603X7301800203
• Author: John Henry Brebbia
• Published date: 01 June 1973
• Date: 01 June 1973
• Subject Matter: Article

THE

ROLE

OF

ADVISORY

OPINIONS AND

THE

BUSINESS

REVIEW

PROCEDURE

by

JOHN

HENRY

BREBBIA·

Most people

are

aware of the fact

that

the Federal

Trade

Commission issues formal advisory opinions in accordance

with its Rules of

Practice'

whereas the Department of

Jus-

tice provides asimilar service called the

antitrust

division

business review procedure," Both of these services

are

de-

signed to provide an avenue for businessmen to seek advice

from the respective agencies concerning the legality of busi-

ness practices or other

antitrust

problems which concern

them.

ADVISORY

OPINIONS

In order to fully understand the role of advisory opinions

in the Federal

Trade

Commission's enforcement arsenal

it

is

necessary to review the history of this portion of the Com-

mission's "business advisory service."

For

as long as anyone

can remember the Commission has always provided staff level

informal opinions to businessmen concerning the legality of

practices they wish to engage in and as to which they desire

advice. However, on

June

1, 1962 the Commission under the

chairmanship of

Paul

Rand Dixon amended

its

rules of prac-

tice

"to

provide an advisory opinion

program

for

the business

community for the purpose of determining whether an in.

tended course of business action, if pursued, is likely to vio-

late

any

of the Commission administered laws." a

• Alston, Miller &Gaines, Washington, D.C.

I

FTC

Procedures

and

Rules of Practice, 16 C.F.R. §§1.1-1.4

(1972) ; 3

TRADE

REG.

REP.

1f9801,

at

17,561 et seq.

II 28 C.F.R. §50.6 (1972); 2

TRADE

REG.

REP.

1f8558,

at

14,031

et seq.

a

FTC

Advisory Opinion Digests, 1968, pg. 1.

191

192

THE

ANTITRUST

BULLETIN

In

abrochure- which the Commission published

thereafter

the new formal procedure was described as follows:

One of the most far-reaching innovations in recent

years, advisory opinions will come as a welcome

surprise

to most businessmen.

Few

indeed

are

aware they can

get a formal, binding opinion from the Commission itself,

where practicable, not

just

from

the staff, on the legality

of a proposed course of action insofar as

it

relates to the

laws the

FTC

enforces. And in the unlikely event the

FTC

should find

it

necessary to modify or reverse an

advisory opinion you will be afforded ample time to make

the needed adjustments in

your

business.

You may be assured

that

careful consideration

will

be

given to the confidentiality of

any

proposal submitted,

and

in no event will your identity be disclosed should

the Commission decide to make generally available the

same advice given you.

In

aforwarding

letter

included in the brochure Chairman

Dixon described the advisory opinion and other procedures

as methods of augmenting the Commission's voluntary com-

pliance procedures

"by

potent

and

long-needed innovations."

In

order

to process requests

for

issuance the Commission

established aDivision of Advisory Opinions within the newly-

created

Bureau

of

Industry

Guidance. The function remained

in the bureau until the bureau was abolished in 1970 as a re-

sult

of the Weinberger reorganization.

At

that

time

it

was

transferred

to the General Counsel's

Office

of Legal Services

wherein

it

resides today. Presently the senior

staff

attorney

dealing with advisory opinions in the General Counsel's

office

is Joseph Dufresne.

The rules explain

that

the Commission's policy is to con-

sider requests

and

to advise the requesting

party

except:1

4Entitled Federal Trade Commission Business Advisory Service,

to the author's knowledge despite its being outdated the brochure is

still being distributed by the Commission's

Office

of Public Informa-

tion.

a

FTC

Procedures

and

Rules of Practice, 16 C.F.R. §1.1 (1972).