Antitrust & Trade Regulation – Page 3

FTC Announces 2025 Hart-Scott-Rodino Threshold Revisions

Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the Act), parties to certain mergers or acquisitions must notify the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) and observe a waiting period before closing. This notification program allows the FTC and DOJ to evaluate potential anticompetitive effects of a proposed transaction. Whether a proposed transaction is subject to the notification program generally depends on the size of the transaction and the size of the parties.
The Act requires parties to file the notification and observe the waiting period if either of the following would be true as a result of the proposed transaction:

The acquiring person will hold an aggregate amount of voting securities, non-corporate interests, or assets of the acquired person valued in excess of $200 million (as adjusted).
The acquiring person will hold an aggregate amount of voting securities, non-corporate interests, or assets of the acquired person valued in excess of $50 million (as adjusted) but not more than $200 million (as adjusted), and one person has sales or assets of at least $100 million (as adjusted), and the other person has sales or assets of at least $10 million (as adjusted).

The dollar thresholds above are noted to be “as adjusted” because they are required to be revised annually by the FTC based on changes in the gross national product. A complete list of the original thresholds, two most recent prior thresholds, and current threshold revisions are shown in this chart:

Original Threshold
Prior Threshold(Went Into Effect February 27, 2023)
Prior Threshold(Went Into Effect March 6, 2024)
Current Threshold(Will Go Into Effect February 21, 2025)

$10 million
$22.3 million
$23.9 million
$25.3 million

$50 million
$111.4 million
$119.5 million
$126.4 million

$100 million
$222.7 million
$239.0 million
$252.9 million

$110 million
$245.0 million
$262.9 million
$278.2 million

$200 million
$445.5 million
$478.0 million
$505.8 million

$500 million
$1.1137 billion
$1.195 billion
$1.264 billion

$1 billion
$2.2274 billion
$2.39 billion
$2.529 billion

Size of Transaction Alone: The original size-of-transaction threshold under the Act was $200 million. As the chart above shows, the current size of transaction threshold for this purpose is $505.8 million. Using the applicable current threshold, transactions are reportable under the Act if the acquiring person will hold an aggregate amount of voting securities, non-corporate interests, or assets of the acquired person valued in excess of $505.8 million.
Size of Transaction and Size of Person: The original size-of-transaction thresholds under the Act were $50 million and $200 million, while the size-of-person thresholds were $100 million and $10 million. Using the applicable current thresholds, transactions are reportable under the Act if a) the acquiring person will hold an aggregate amount of voting securities, non-corporate interests, or assets of the acquired person valued in excess of $126.4 million but not more than $505.8 million, b) one person has sales or assets of at least $252.9 million, and c) the other person has sales or assets of at least $25.3 million.
Each notification under the Act requires a filing fee, which is dependent on the size of the transaction. The updated filing fees will be effective on February 21, 2025, and are as follows:

Size of Transaction
Filing Fee

in excess of $126.4 million but less than $179.4 million
$30,000

not less than $179.4 million but less than $555.5 million
$105,000

not less than $555.5 million but less than $1.111 billion
$265,000

not less than $1.111 billion but less than $2.222 billion
$425,000

not less than $2.222 billion but less than $5.555 billion
$850,000

$5.555 billion or more
$2.39 million

Civil penalties may be imposed for violations of the Act. Effective January 10, 2024, the maximum civil penalty amount increased from $51,744 to $53,088 per day.
Earlier this year, the FTC, in concurrence with the DOJ, issued rules updating the premerger notification form (HSR Form). The revised rules were published in the Federal Register on November 12, 2024, and took effect on February 10, 2025. As of that date, all notifications must use the updated HSR Form. The FTC also announced that it will lift the suspension on early termination of the 30-day waiting period, which has been in place since February 2021.

6 Steps to Manage Tariff Risks in a Trade War

As Trump seeks to raise U.S. tariffs (which currently tend to be among the lowest worldwide), manufacturers, distributors, retailers, and other companies that frequently import (“importers”) must determine the best strategy to deal with the resulting uncertainties. Determining such a strategy is further complicated by the fact that President Trump has made a number of different proposals depending on the country and product.

Trump Tariff Proposals

25% tariffs on Mexico and Canda
10% tariffs on China
100% tariffs on BRICS countries (comprising Brazil, Russia, India, China, and more recently additional countries in the Middle East and Africa)
10–20% tariffs on the rest of the world
“Reciprocal tariffs” that would impose varying tariff levels by country

But while the exact form of higher tariffs is unknown, the reality is that higher tariffs are coming. This means importers have three tariff-related problems:

Identifying and Managing Immediate Risks and Cost Increases. Importers need to manage the immediate risk of higher tariffs, which can sharply change production cost structures.
Nimbly Responding by Changing Supply Chain Structure. Importers need to ensure they can nimbly respond to rapid shifts in importing from planned suppliers, even if it means entirely changing long-standing supply chains.
Maintaining Supply Chain Integrity to Avoid Detained Goods. Importers need to continue to comply with ongoing efforts of Customs & Border Protection (CBP) to emphasize supply chain integrity issues so that goods do not get detained at the border — specifically, supply chain integrity issues related to forced labor, human trafficking, and the importing of goods potentially violating the Uyghur Forced Labor Prevention Act (UFLPA).

To cope with these problems, importers need to identify their import-related risks, add flexibility within their supply chains, address tariff-related risks in both their buy- and sell-side contracts, and ensure their customs and supply chain integrity compliance is in good working order. Below are six practical steps that importers can take to identify and mitigate their import-related risks.

Step 1: Risk Identification – Understanding Your Company’s Importing Patterns and How They Impact Your Company’s Importing Risk Profile. Importers need to gather full information on their historic and planned import patterns so that they can understand the full scope of potential supply chain disruptions and higher tariffs on importing costs.
Step 2: Risk Planning – Understanding How to Add Flexibility to Your Supply Chain to Address Your Company’s Import-Related Risk. It is likely that the Trump Administration will announce tariff rates that target certain countries, including not just China, Canada, and Mexico but also Europe and countries that have free trade agreements with the United States. Accordingly, importers need to conduct risk planning and identify areas where they can build in supply chain flexibility to ensure they have the ability to quickly pivot import patterns if needed to respond to a rapidly changing tariff environment, particularly when importing from countries that maintain higher tariffs and non-tariff barriers, such as China, India, and Brazil (which will likely be targets of reciprocal tariffs).
Step 3: Contractual Risk Management – Identifying Ways to Increase Your Company’s Contractual Ability to Adapt to Unexpected Changes in the Importing Environment. Importers should gather and audit their contractual provisions, on both the buy and sell sides, to determine how the contracts address tariff-related risks. The goal is to ensure all contractual arrangements incorporate supply, sales, and pricing flexibility to deal with unanticipated tariff changes.
Step 4: Risk Minimization– Ensuring Your Company’s Customs Compliance Is in Order. In a high-tariff environment, tariff underpayments mount up much more quickly, as do potential penalties. As a result, manufactures must examine import-related compliance to ensure your company is exercising reasonable care in import operations and not underpaying customs tariffs.
Step 5: Opportunity Identification – Ensuring Your Company Is Maximizing Tariff Savings. In a high-tariff environment, it also is more important to identify potential tariff-saving opportunities. Therefore, importers must examine their historic and planned import patterns to identify available tariff-saving opportunities, including potential ways to minimize tariffs if USMCA disappears (or if it is substantially modified), or if additional tariffs are imposed on Canada or Mexico or other major sources of imports.
Step 6: Minimizing Supply Chain Integrity Risks– Understanding Your Supply Chain and Mitigating Supply Chain Integrity Risk, Right Down to the Last Sub-Supplier. Finally, CBP has been detaining a record number of goods for supply chain integrity issues, especially for UFLPA violations. An importer must carefully consider whether it has implemented measures to help ensure it is ethically sourcing goods from abroad, including the need to quickly vet secondary or alternative suppliers brought on board to expand supply chain flexibility.

NASAA Supports Reasonable Post-Term Non-Competes in Franchise Agreements

Last year saw non-compete agreements come under repeated scrutiny from the Federal Trade Commission. On April 23, 2024, the FTC issued a final rule banning non-compete agreements in most employment contracts. That rule, which did not apply to non-compete provisions in franchise agreements between franchisors and franchisees, was subsequently struck down by a federal court in August 2024 and is now on appeal to the Fifth Circuit. Separately, on July 12, 2024, the FTC released an Issue Spotlight identifying post-term covenants not to compete in franchise agreements as one of the top 12 concerns of US franchisees. In the wake of the FTC’s various statements and actions, the North American Securities Administrators Association (NASAA)’s Franchise and Business Opportunities Project Group—a group of state franchise regulators—announced on January 27, 2025, its guidance on post-term non-compete clauses in the context of the franchise business model. The full text of the guidance can be found here.
NASAA’s guidance expressly recognizes that “[w]here authorized under applicable law, post-termination non-competes can serve useful purposes in the franchising context” and that “[s]ystem goodwill, customer relationships and protection of other franchisees” are legitimate business interests that may reasonably require protection through non-compete provisions. According to the guidance, a reasonable post-term non-compete in a franchise agreement requires a balancing of scope, territorial or market reach, duration and effect on the departing franchisee, weighing the interests of the franchisor, the existing franchisees in the system and the franchisee exiting the system.” NASAA concluded:
“Post-term non-competes should be narrowly drawn and reasonable in scope, duration and territory. In the current climate of increased judicial and legislative scrutiny of non-competes, the reasonableness inquiry becomes critical. When drafting or enforcing a post-term non-compete, a franchisor should consider both its position and the positions of existing franchisees and the franchisee leaving the system. Consistent with legal authority, franchisors should prepare a non-compete that reasonably protects the interests of the franchisor and existing franchisees yet allows the former franchisee to realize the value of its investment and experience in the franchised business.”
While largely summarizing the state of current non-compete law in many states, NASAA’s guidance may signal a new interest by state franchise examiners in scrutinizing post-term non-compete provisions in franchise agreements during the registration process. The guidance is thus a good reminder for franchisors to evaluate the reasonableness and compliance with applicable law of any non-compete provisions in their franchise agreements. This time of year, when many franchisors are in the process of updating their franchise disclosure documents and forms of agreement, is a good time for such review.

NLRB Acting General Counsel Rescinds Non-compete Labor Policy

In a significant development for employers that use restrictive covenant agreements, on February 14, 2025, National Labor Relations Board (NLRB) Acting General Counsel (GC) William B. Cowen rescinded prior NLRB GC memoranda, including two restrictive covenant-related memoranda authored by former general counsel, Jennifer Abruzzo.
Memorandum GC 25-05 specifically rescinds (1) “GC 23-08 Non-Compete Agreements that Violate the National Labor Relations Act” and (2) “GC 25-01 Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act.” The rescission of the Abruzzo memos is not surprising given the new administration. Yet, it is an important development for employers that use restrictive covenants and/or stay-or-pay agreements with non-supervisory and non-management employees.
Quick Hits

On February 14, 2025, NLRB Acting GC William B. Cowen rescinded memoranda that deemed as violations of the National Labor Relations Act (NLRA) two categories of restrictive covenant agreements with non-supervisory/non-management employees: (1) non-compete agreements in employment contracts and severance agreements and (2) stay-or-pay agreements whereby employees are required to remain employees for a certain period of time or reimburse an employer certain moneys.
This action reverses the stance taken by former GC Jennifer Abruzzo, who argued that such agreements interfere with employees’ rights under Section 7 of the NLRA.
The rescission is important for employers that use restrictive covenants, as it changes the federal legal and practical risk framework regarding the enforceability of them.

Acting GC Cowen’s memo rescinded GC 23-08. That memo declared that the “proffer, maintenance, and enforcement” of non-compete agreements in employment contracts and severance agreements violate the NLRA. According to Abruzzo, who issued that memorandum on May 30, 2023, non-compete “agreements interfere with employees’ exercise of rights under Section 7 of the National Labor Relations Act (the Act or NLRA). Except in limited circumstances, I believe the proffer, maintenance, and enforcement of such agreements violate Section 8(a)(1) of the Act.” The Acting GC also rescinded GC 25-01, which identified as unlawful many common provisions under which employees must repay their employers certain bonuses and benefits if they voluntarily or involuntarily separate from employment before the expiration of a defined stay period. Abruzzo’s enforcement position on stay-or-pay agreements was that they violated Section 8(a)(1) of the NLRA unless they were “narrowly tailored to minimize any interference with Section 7 rights” and employers can meet a specific test for whether the provision “advances a legitimate business interest.”
While the rescission of the memos is a welcome development for the employer community, some labor risk remains relating to these agreements. Abruzzo’s positions on non-compete agreements and stay-or-pay agreements are, at least in part, rooted in application of two NLRB decisions:
(1) McLaren Macomb, which declared certain nondisparagement and confidentiality provisions presented to nonmanagerial employees as violative of employees’ Section 7 rights, and
(2) Stericycle, Inc., which adopted a new standard on when an employer work rule infringes on employees Section 7 rights.
The McLaren Macomb and Stericycle cases are still existing Board law. Efforts to adopt new standards will require a fully constituted NLRB, which presently lacks a quorum. Employers also still need to factor in conflicting decisions by NLRB administrative law judges (ALJ). For example, some ALJs have adopted Abruzzo’s position concerning the legality of non-compete agreements for non-supervisory/non-management employees. But other ALJs have concluded that Abruzzo’s position does not comport with existing law, and to be enforceable, the positions must first be adopted by the NLRB (which has not happened). As a result, employers should continue to be thoughtful and acknowledge that there remains some risk in fully abandoning Abruzzo’s positions in the memos. They should balance that risk against their legitimate businesses interests in having fulsome (but appropriately tailored) restrictive covenant protections.
Next Steps
The rescission of the memos alters, and further informs, the risk analysis surrounding the use of these common provisions in employment contracts and severance agreements. Employers may now have more leeway to implement and enforce non-compete clauses without the same level of legal scrutiny or risk of being found in violation of non-supervisory/non-management employees’ rights under Section 7 of the NLRA. But employers should note that restrictive covenants for non-supervisory employees continue to be governed by state law—as they traditionally have been. Employers wishing to enforce such agreements may need to still be mindful of applicable state law and ensure such covenants are tailored as needed to protect their legitimate business interests, including with respect to confidential information (trade secrets), goodwill in customers and employees, and unfair competition.

Tariff Update: 25 Percent Tariff on Steel, Aluminum Imports and Other Imports Affected

The tariff dance continues, as the new administration on Feb. 10 imposed 25 percent tariffs on all steel and aluminum imports for national security purposes under Section 232, effective March 12, 2025. Although the detailed annexes of products subject to the tariffs were not immediately published on the White House website, they should be published soon in the Federal Register.
The proclamation states, among other things, that (i) a product inclusion process for derivative steel products will be established 90 days after the date of the proclamation, (ii) the product exclusion process will be revoked and no renewals or additional exclusion requests will be permitted (iii) classification of imported steel and derivative steel products will be a Customs and Border Protection priority and maximum penalties apply if importers misclassify products to evade tariffs, and (iv) duty drawbacks do not apply to these tariffs.
This action mirrors the tariffs initially imposed in January 2018 for national security reasons. However, during that period, certain exemptions were granted to key trading partners. This new proclamation reinstates the tariffs without exception or exemptions, signaling a renewed focus on protecting domestic steel and aluminum industries.
Far-Reaching Implications
The implications of these tariffs are far-reaching for U.S. businesses, particularly those in industries that rely on imported steel and aluminum for manufacturing. Companies in sectors such as automotive, construction, and manufacturing will face increased costs, potentially leading to higher prices for consumers and reduced competitiveness in global markets. U.S. businesses that rely on these materials for production could experience disruptions to supply chains and a push for diversification of sourcing to mitigate the impact of these tariffs.
Moreover, a Feb. 7, 2025, Executive Order again allows packages from China to qualify as duty-free under the de minimis program until “adequate systems are in place.” This action reverses a Feb. 1 Executive Order and applies to the program that handles millions of low-value shipments daily. The Executive Order’s instruction ”would require mail from China to go through the ‘formal entry’ process, rather than the less-burdensome informal option.”
The action imposing 10 percent tariffs on China on Feb. 1 also prohibited de minimis treatment for any shipments from China worth $800 or less. Similarly, the U.S. Postal Service announced a prohibition on all packages from China on Feb. 4 when the tariffs became effective, only to reverse the position the next morning.
According to media reports, additional tariffs are expected on semiconductors, pharmaceuticals, and other industries, as well as further reciprocal tariffs against China after imposing tariffs on U.S. goods in response to the Feb. 1 action. Trading partners, including the European Union and Canada, are expected to impose reciprocal tariffs against the latest U.S. steel and aluminum tariffs, based on media reports.

Robert F. Kennedy, Jr. Confirmed as HHS Secretary

On 13 February 2025, President Trump announced that he is directing the US Commerce Secretary and US Trade Representative to report to him by 1 April 2025 on specific tariffs the United States should impose to address bilateral trade deficits with countries that maintain higher tariffs on US exports than the level of tariffs that the United States imposes on their products. These “reciprocal” tariffs are expected to be finalized soon after the Commerce and USTR reports are finalized, but the date on which they may be implemented has yet to be announced.
Key points to remember concerning this latest tariff announcement are:

There will be no additional tariffs immediately as a result of this latest announcement.
US trade agencies (primarily Commerce and USTR) are to study tariffs imposed by other countries on US exports and recommend whether the United States should impose comparable tariffs against US imports from those countries.
Value-Added Tax and other tax regimes that US trading partners use but the US does not are potentially going to be included in the tariff rate calculations for those countries. Also potentially addressed will be distortions in exchange rates caused by currency policies of some countries and “non-tariff barriers” such as regulatory requirements (e.g., country-specific product standards) that are found to restrict market access opportunities for US exporters.
The US trade agencies must provide their recommendations to the president by 1 April 2025, the same date as originally set in the “America First Trade Policy.”
Thereafter, the US trade agencies are to use their respective statutory authorities (e.g., Section 232, 301, etc.) to impose relevant and necessary remedies such as tariffs, quotas, or other measures. Such remedies are likely to be in addition to the 10% tariffs on imports from China and 25% tariffs on imports of steel and aluminum that President Trump announced earlier this month. They are also likely to include new Section 232 tariffs on semiconductors, autos, and pharmaceuticals.
On its face, the Executive Order applies to all countries, but we may see exemptions for some (e.g., Australia) with which the United States maintains relatively balanced trade in goods.

Overall, this latest trade action signals the form that eventual additional US trade measures may take – e.g., tariffs and quotas under existing statutory authorities – as well as, most importantly, that there will be a process and longer time horizon for interested parties to comment before such measures go into effect. Companies and investors with interests impacted by these issues should use this time to prepare data and other analyses and advocacy to support their interests.

President Trump Directs US Trade Agencies to Formulate Reciprocal Tariffs

‘Fair and Reciprocal Plan’ Threatens Future Tariffs on All U.S. Trading Partners

On Feb. 13, 2025, President Trump announced his “Fair and Reciprocal Plan” to “reduce [the United States’] large and persistent annual trade deficit in goods and to address other unfair and unbalanced aspects of [U.S.] trade with foreign trading partners.” At this time, the White House has only released a memorandum and accompanying Fact Sheet addressing this new Plan for reciprocal tariffs. Below are a few key observations based on the limited information so far:

Unlike the tariffs recently imposed against China and currently deferred on Mexico and Canada under the International Emergency Economic Powers Act (IEEPA), reciprocal tariffs will not be imposed immediately. The memorandum states that the U.S. Department of Commerce and the U.S. Trade Representative, in consultation with other agencies, shall initiate and investigate any harm to the U.S. from non-reciprocal trade practices of other countries after submission of the specified reports due under the America First Trade Policy Memorandum. Most of these reports under the America First Trade Policy are due April 1, 2025.
All U.S. trading partners will presumably be subject to the Fair and Reciprocal Plan investigations, including World Trade Organization (WTO) members. Indeed, the White House Fact Sheet refers to “132 countries and more than 600,000 product lines” where U.S. exporters face higher tariffs more than two-thirds of the time. Interestingly, the Fact Sheet provides specific examples of non-reciprocal treatment by certain countries and in certain industries, such as the European Union (shellfish, cars), India (agriculture and motorcycles), and Brazil (ethanol). It is unclear if these named countries and industries will become prioritized targets for reciprocal tariffs. Ultimately, any new reciprocal tariffs imposed by the U.S. are likely to be challenged in the WTO.
The Commerce Department and USTR will be charged with investigating not only unbalanced tariff treatment by other countries, but also other nontariff barriers such as digital trade barriers, government procurement, lack of intellectual property protection, and export subsidies, among others. Thus, we may see the U.S. take action beyond imposing just reciprocal tariffs, e.g., digital service taxes.
The Fact Sheet uses the phrase “The Art of the International Deal,” which may suggest that the “Fair and Reciprocal Plan” is intended primarily as a negotiating tactic.

New Administration Establishes International Criminal Court-Related Sanctions

On Feb. 6, 2025, President Trump issued an executive order (EO) establishing International Criminal Court (ICC)-related sanctions. The EO characterized the ICC as “ha{ving} engaged in illegitimate and baseless actions targeting America and our close ally Israel.”
The EO imposes sanctions on persons listed in its annex, which currently includes Karim Khan, prosecutor of the ICC since 2021. The EO also authorizes sanctions on any foreign person determined by the U.S. State Department to, e.g., have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person’s country of nationality or to have provided material assistance or support for such activities or persons sanctioned under the EO. As a result of these sanctions, U.S. persons generally may not engage in any unlicensed transactions with Khan, and his property in the U.S. is blocked (i.e., frozen). The sanctions also impose travel-related restrictions. These prohibitions would also extend to anyone else sanctioned under this authority.
These new ICC-related sanctions represent one of several actions President Trump has taken under the International Emergency Economic Powers Act (IEEPA), which provides the president with broad authority to regulate international transactions in response to a declared “national emergency.” IEEPA has previously been used to target China, Canada, and Mexico.
U.S. and international businesses must carefully monitor the Trump Administration’s use of IEEPA to regulate international trade. Prohibitions established under IEEPA can take effect immediately, and non-compliance can lead to significant penalties.

Executive Order Update on Construction Materials

Executive Order Adjusting Imports of Aluminum into The United States
On February 11, 2025, in an executive order titled Adjusting Imports of Aluminum into the United States, President Trump increased, from 10% to 25%, the ad valorem tariff rate on imports of aluminum and aluminum-derivative articles from most countries. The tariff rate on imports of aluminum from Russia will be 200%. President Trump cited national security grounds as the reason for the tariff increases.
The executive order also ended previous exemptions on these imports for allies such as Argentina, Australia, Mexico, Canada, the EU, and the UK.
The tariffs begin on March 12, 2025.
The President stated that these actions aim “to protect America’s steel and aluminum industries, which have been harmed by unfair trade practices and global excess capacity.”
Executive Order Adjusting Imports of Steel into The United States
On February 10, 2025, in an executive order titled Adjusting Imports of Steel into the United States, President Trump increased, from 10% to 25%, the ad valorem tariff rate on imports of steel and steel-derivative articles from most countries. President Trump cited national security grounds as the reason for the tariff increases.
The executive order also ended previous exemptions on these imports from Argentina, Australia, Brazil, Canada, the EU, Japan, Mexico, South Korea, and Ukraine.
The tariffs begin on March 12, 2025.
The President stated that these actions aim “to protect America’s steel and aluminum industries, which have been harmed by unfair trade practices and global excess capacity.”

Reciprocal Tariffs to be Investigated, Potentially Imposed Later in 2025

Yesterday, President Trump issued a memorandum introducing the President’s “Fair and Reciprocal Plan” to investigate and take actions to correct “longstanding imbalances in international trade.”
President Trump intends the “Fair and Reciprocal Plan” to address tariff and non-tariff trade barriers disadvantaging U.S. exporters and businesses. According to a White House Fact Sheet issued in conjunction with the memorandum, the United States has run a trade deficit every year since 1975, with the U.S. trade deficit in goods exceeding $1 trillion in 2024. Under the “Fair and Reciprocal Plan,” the Trump Administration aims “to counter non-reciprocal trading agreements” and “address other unfair and unbalanced aspects of [the U.S.] trade with foreign trading partners” leading to this trade deficit by undertaking a broad analysis of the non-reciprocal trade relationships and practices of all United States trading partners, including:

Tariffs imposed on U.S. products;
Unfair, discriminatory, or extraterritorial taxes imposed on U.S. businesses, workers, and consumers, including a value-added tax;
Costs to U.S. businesses, workers, and consumers arising from nontariff barriers or unfair or harmful acts, policies, or practices, including subsidies and burdensome regulatory requirements on U.S. businesses operating abroad;
Policies and practices that cause exchange rates to deviate from their market value to the detriment of Americans; and
Any other practice that, in the judgment of the United States Trade Representative (USTR), in consultation with the Secretary of the Treasury, the Secretary of Commerce, and the Senior Counselor to the President for Trade and Manufacturing, imposes any unfair limitation on market access or any structural impediment to fair competition.

In order to effect the “Fair and Reciprocal Plan,” the President directs Commerce and USTR, in consultation with Treasury, Homeland Security, the Assistant to the President for Economic Policy, the Senior Counselor to the President for Trade and Manufacturing, and the heads of other executive departments that they deem relevant, to review the agency reports due on April 1 pursuant to the January 20 America First Trade Policy Memorandum and initiate “all necessary actions to investigate the harm to the United States from any non-reciprocal trade agreements adopted by any trading partners.”
Following the completion of those investigatory actions, Commerce and USTR are directed to submit to the President a report detailing proposed remedies in pursuit of reciprocal trade relations with each trading partner, but the memorandum does not specify a deadline for submission of the report. The investigatory actions and proposed remedies could reflect a mix of different legal tools, including the use of Section 301 of the Trade Act of 1974 (previously used for the 2018 and 2019 tariffs on China); Section 232 of the Trade Expansion Act of 1962 (previously used for the tariffs on steel and aluminum); and the International Emergency Economic Powers Act (IEEPA) (utilized earlier this month for the paused tariffs on Canada and Mexico, and the newly effective 10% tariffs on China).
The memorandum does not provide a timeline for Presidential action after the submission of the reports and recommendations from Commerce and USTR.
This process will present multiple opportunities for input from stakeholders as the investigations and potential actions play out over the coming months.

Privacy and Advertising Year in Review 2024: Will Kids and Teens Remain a Focus in 2025?

A new year. A new administration in Washington. While protecting kids and teens is likely to remain an issue that drives legislation, litigation, and policy discussions in 2025, issuance of 1,000 Executive Orders on day one of the Trump Administration may result in new or changed priorities and some delay in the effective date of the recently updated Children’s Online Privacy Protection Rule (COPPA Final Rule).
We start with a recap of significant actions affecting kids and teens from the beginning of 2024 to the end of the Biden Administration in January 2025 and some early action by the Trump Administration.
Key Actions Affecting Kids and Teens:

FTC Regulation and Reports

The Federal Trade Commission (FTC or Commission) kicked off 2024 with proposed rules updating the Children’s Online Privacy Protection Act (COPPA) and issued a COPPA Final Rule in the closing days of the Biden Administration. FTC Commissioner and now Chair Andrew Ferguson identified several areas requiring clarification, and publication of the COPPA Final Rule will likely be delayed due to President Trump’s Executive Order freezing agency action.
The FTC released a highly critical staff report, A Look Behind the Screens: Examining the Data Practices of Social Media and Video Streaming Services, in September of 2024. The report, based on responses to the FTC’s 2020 6(b) FTC Act orders issued to nine of the largest social media platforms and video streaming services, including TikTok, Amazon, Meta, Discord, and WhatsApp, highlighted privacy and data security practices of social media and video streaming services and their impacts on children and teens.
Policy debates centered on Artificial Intelligence (AI), and one of the Commission’s final acts was a January 17, 2025, FTC Staff Report on AI Partnerships & Investments 6(b) Study.
The Project 2025 report, Mandate for Leadership 2025: The Conservative Promise, recommends possible FTC reforms and highlights the need for added protections for kids and teens and action to safeguard the rights of parents. The report stresses in particular the inability of minors to enter into contracts.

Litigation and Enforcement: the FTC

On July 9, 2024, chat app maker NGL Labs settled with the FTC and Los Angeles District Attorney after they brought a joint enforcement action against the company and its owners for violations of the COPPA Rule and other federal and state laws.
On January 17, 2025, the FTC announced a $20 million settlement of an enforcement action alleging violations of COPPA and deceptive and unfair marketing practices against the developer of the popular game Genshin Impact. In addition to an allegation that the company collected personal information from children in violation of COPPA, the complaint alleged that the company deceived users about the costs of in-game transactions and odds of obtaining prizes. As a result, the company is required to block children under 16 from making in-game purchases without parental consent.

Federal and State Privacy Legislation

Federal privacy legislation, including the Kids Online Safety Act (KOSA 2.0) and its successor, the Kids Online Safety and Privacy Act (KOSPA), failed to make it through Congress, although 32 state attorney generals (AGs) sent a letter to Congress urging passage of KOSA 2.0 on November 18, 2024.
Last year, Kentucky, Maryland, Minnesota, Nebraska, New Hampshire, New Jersey, and Rhode Island enacted comprehensive privacy laws, and they include provisions affecting children and teens. Those states join California, Colorado, Connecticut, Delaware, Florida, Indiana, Iowa, Montana, Oregon, Tennessee, Texas, Utah, and Virginia.

Litigation and Enforcement: the Courts

Throughout 2024, state attorneys general and private plaintiffs brought litigation targeting social media platforms and streaming services, alleging that they are responsible for mental and physical harm to kids and teens.
Legal challenges to more state social media laws arguing they violate First Amendment rights, among other grounds, were filed or were heard by courts in 2024, and legal action has continued into this year. On February 3, 2025, the tech umbrella group NetChoice filed a complaint in Maryland district court against the Maryland Age-Appropriate Design Code Act (Maryland Kid’s Code or Code), which was enacted on May 9, 2024. The complaint, which is similar to NetChoice’s recent challenges to other state social media laws, alleges that the Code violates the First Amendment by requiring websites “to act as government speech police” and alter their protected editorial functions through a vague and subjective “best interests of children” standard that gives state officials “nearly boundless discretion to restrict speech.” In 2024, NetChoice and its partners successfully obtained injunctions or partial injunctions against social media laws on constitutional grounds in Utah on September 9, 2024, in Ohio on February 12, 2024, and, at the eleventh hour, on December 31, 2024, against California’s Protecting Our Kids from Social Media Addiction Act. NetChoice’s complaint against Mississippi HB 1126 was heard by the U.S. Court of Appeals for the Fifth Circuit on February 2, 2025, but a decision has not yet been published as of the time of this writing.
On August 16, 2024, a panel of the U.S. Court of Appeals for the Ninth Circuit partially affirmed the district court’s opinion that the data privacy impact assessment (DPIA) provisions of the California Age Appropriate Design Code Act (CAADCA) “clearly compel(s) speech by requiring covered businesses to opine on potential harms to children” and are therefore likely unconstitutional. However, the appeals court vacated the rest of the district court’s preliminary injunction “because it is unclear from the record whether the other challenged provisions of the CAADCA facially violate the First Amendment, and it is too early to determine whether the unconstitutional provisions of the CAADCA were likely severable” from the rest of the Act. The panel remanded the case to the district court for further proceedings.
On July 1, 2024, the Supreme Court held that the content moderation provisions of both Texas HB 20 and Florida SB 7072, which the court decided jointly, violated the First Amendment and sent the cases back to the lower courts for further “fact-intensive” analysis.
On January 17, 2025, the U.S. Supreme Court affirmed the judgment of the U.S. Court of Appeals for the D.C. Circuit that upheld a Congressional ban on TikTok due to national security concerns regarding TikTok’s data collection practices and its relationship with a foreign adversary. The Court concluded that the challenged provisions do not violate the petitioners’ First Amendment rights. President Trump has vowed to find a solution so that U.S. users can access the platform.
On January 15, 2025, the U.S. Supreme Court heard an appeal of a Texas law that requires age verification to access porn sites, and it seems likely the Court will uphold the law.

We Forecast:

Efforts to advance a general federal privacy law and added protections for kids and teens will redouble. Indeed, S. 278, Keep Kids Off Social Media Act (KOSMA), advanced out of the Senate Commerce Committee on February 5, 2025. However, tight margins and the thorny issues of preemption and a private right of action will complicate enactment of general privacy legislation.
States will continue to be actively engaged on privacy and security legislation, and legal challenges on constitutional and other grounds are expected to continue.
Legal challenges to data collection and advertising practices of platforms, streaming services, and social media companies will continue.
The FTC was planning to hold a virtual workshop on February 25, 2025 on design features that “keep kids engaged on digital platforms.” The FTC’s September 26, 2024 announcement outlines topics for discussion, including the positive and negative physical and psychological impacts of design features on youth well-being, but the workshop has been postponed.

Our crystal ball tells us that privacy protection of kids and teens and related questions of responsibility, liability, safety, parental rights, and free speech will continue to drive conversation, legislation, and litigation in 2025 at both the federal and the state level. While the deadline for complying with the new COPPA Rule is likely to slide, businesses will need to implement operational changes to comply with new obligations under the Rule, while remaining aware of the evolving policy landscape and heightened litigation risks.