State Attorney General Enforcement of Unfair or Deceptive Acts and Practices Laws: Emerging Concerns and Solutions

Consumer protection laws provide state attorneys general (AGs) with sweeping authority to address improper business practices. As their name suggests, most state Unfair or Deceptive Acts and Practices (UDAP) laws broadly prohibit any conduct that can be viewed as “unfair” or “deceptive.” The open-ended nature of these terms provides substantial power to state AGs. In most cases, state AGs and their staffs quietly, responsibly, and effectively apply this broad authority to protect the rights of consumers. In recent years, however, there is growing concern among businesses, courts, and commentators that some UDAP actions have strayed from their intended purpose of protecting consumers. The types of enforcement actions that have raised controversy bear little resemblance to traditional government enforcement of consumer protection laws. This Article identifies four common elements in the types of UDAP actions that have raised concern. First, these cases are typically not sparked by consumer complaints, but are developed by private lawyers retained by AGs to pursue the litigation on the state’s behalf. Second, the cases often target practices already regulated by government agencies charged with protecting the public. AGs have, for example, used UDAP laws to step into the shoes of the U.S. Food and Drug Administration to