Today, TechFreedom released an open letter calling on the FTC to take public comments before finalizing its policy statement on deceptive AI and federal preemption. We remind the Commission that President Trump previously ordered agencies to take public input when formulating significant guidance documents. Here, public input is key given the federalism implications and the economic impacts of AI.

“Public comments can increase judicial deference to agency policy statements,” said Andy Jung, TechFreedom’s Associate Counsel. “Added procedures like notice-and-comment can signal careful consideration, which courts value under Skidmore deference, where the key question is whether an agency shows thoroughness in its reasoning. In 2010, the Seventh Circuit deferred to FTC statutory interpretations partly because it used notice-and-comment, while in 2012, the Supreme Court concluded that the Department of Labor’s interpretation of its regulations lacked thoroughness, in part because there was no opportunity for public comment.”

“Public comments are especially indispensable now that the FTC is operating with just two Commissioners—both from the same party,” Jung continued. “Congress intended the FTC to be composed of five Commissioners and not entirely of members of the President’s party. Multi-member independent agencies benefit from diverse perspectives and different points of view among the commissioners. Dissent and competing views force clearer reasoning, challenge assumptions, and reduce groupthink—functions that public comments can help supply here.”

“Public comments are essential to unpack the complex issues of deceptive AI and federal preemption,” Jung concluded. “Taking public comments would help foster more deliberative decision-making. The Commission would benefit from feedback from the public and experts on both the factual question—what, if any, state laws require alterations to the truthful outputs of AI models—and the legal question—the circumstances under which the FTC Act may preempt such laws.”

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About TechFreedom:

TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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