On 9 July 2021, President Joe Biden issued an Executive Order ("Order") and a supporting Fact Sheet announcing 72 initiatives to increase vigorous antitrust enforcement. The Order sets competition-law priorities for the Federal Trade Commission (FTC), the US Department of Justice (DOJ), and more than a dozen other federal agencies coordinated through a new White House Competition Council.
The Order also prioritizes certain conduct for antitrust enforcement, rulemaking and/or guidelines including employee non-compete clauses, occupational licensing requirements, sharing of wage data among employers, customer data collection, restraints on use of third-party product repair options, “pay-for-delay” pharma patent settlements, and standard-essential patent licensing.
It also calls for “greater scrutiny of mergers” through revisions to the DOJ/FTC Merger Guidelines and more aggressive enforcement for mergers involving internet platforms, hospitals, drug companies, banks, and others.
The Biden Administration claims this broad-reaching Order will benefit American consumers through increased competition across various sectors and reduced prices of essential goods. It mandates more aggressive merger enforcement by the antitrust agencies to address market power of large companies and recommends other regulatory and legislative changes to promote competition. The Order prioritizes the following key industries for scrutiny: Technology, Healthcare & Life Sciences, Banking and Finance, Transportation, Agriculture, Intellectual Property, Defense, and Real Estate. In addition, the Order focuses on labor markets, which touch upon all industries and sectors. The highlights of the Order are summarized below.
The Order encourages the FTC to increase enforcement in labor markets, with the following objectives:
- Ban or limit non-compete agreements and other clauses that may unfairly limit worker mobility (for more specifics, see our recent blog post on this topic);
- Ban unnecessary occupational licensing restrictions that impede economic mobility;
- Strengthen guidance regarding collaboration by employers to prevent suppression of wages and reduction of benefits;
- The Treasury Department must submit a report on the impact of the current lack of competition in labor markets within 180 days.
- The Order encourages greater scrutiny of mergers by “dominant” internet platforms with particular attention to the “killer acquisitions” of nascent competitors or serial mergers;
- The FTC is encouraged to issue rules regarding
- Surveillance and accumulation of data;
- Barring “unfair” competition on internet marketplaces; and
- Anticompetitive restrictions on using independent, third party repair shops;
- The Federal Communications Commission is encouraged to implement changes in pricing, fees, and transparency in internet services.
- The Secretary of the Treasury must submit a report within 270 days “assessing the effects on competition of large technology firms’ and other non‑bank companies’ entry into consumer finance markets.”
Healthcare & Life Sciences
The Order directs the agencies to tackle four areas of healthcare (prescription drugs, hospital consolidation, hearing aids, and insurance).
- The DOJ and FTC are encouraged to review and revise their merger guidelines for hospital consolidations;
- The FTC is encouraged to ban “pay for delay” settlement agreements between brand and generic drug manufacturers, also known as “reverse payments”;
- The Food and Drug Administration is directed to work with state agencies to import prescription drugs from Canada;
- The Health and Human Services Administration (HHS) will issue a comprehensive plan within 45 days to prevent price gouging and rising prescription drug prices;
- HHS will increase support for generic and biosimilar drugs, improve transparency rules in hospital prices, and conclude the implementation of federal legislation to address hospital billing;
- HHS to issue proposed rules within 120 days for allowing hearing aids to be sold over the counter;
- HHS is directed to standardize insurance plan options in the National Health Insurance Marketplace.
- DOJ is instructed to work with the Department of Transportation (DOT) to ensure competition in air transportation, particularly “the ability of new entrants to gain access;”
- The DOT is directed to issue rules around fee structure, with respect to items such as refunds, baggage, change and cancellation fees;
- The Federal Maritime Commission is encouraged to “vigorously enforce” against shippers who impose excessive charges against American exporters;
- Railroad track owners shall be required to provide rights of way to passenger rail and increase obligations of fair treatment of other freight companies.
- The FTC is encouraged to issue rules limiting equipment manufacturers from restricting people’s ability to use independent repair shops;
- The FTC is directed, along with the US Department of Agriculture (USDA), to ensure that the intellectual property system does not reduce competition in seed and other input markets;
- The FTC is ordered, along with the USDA, to report on the effect of retail concentration and retailers’ practices on the competition in the food industry (USDA must issue a plan to increase opportunities for farmers to access markets within 180 days and a report on the effect of retail concentration on competition in the food industries within 300 days);
- The DOJ, FTC, and the Department of Treasury are directed to issue a report of threats to competition and barriers to new entry in the beer, wine, and spirits markets;
- The USDA is directed to issue new rules for filing claims by farmers and to adopt anti-retaliation protections for farmer whistleblowers;
- USDA is directed to issue new labeling rules for permitting the use of “Product of USA” on meat products.
Banking & Financial Services
- The DOJ and the banking agencies1 are encouraged to update their guidelines and provide more robust scrutiny of banking mergers (within 180 days);
- The Consumer Financial Protection Bureau is encouraged to issue rules allowing customers to download their banking data.
The DOJ and Department of Commerce are encouraged to revise their position on the intersection of antitrust and intellectual property policy (including the previous administration’s Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments issued in December 2019). This is based on concerns about the anticompetitive extension of market power “beyond the scope of granted patents,” and the protection of standard-setting processes.
The Department of Defense is directed to conduct a review of the state of competition within the defense industrial base and make recommendations for improving the solicitation process to promote greater competition (within 180 days).
The FTC is encouraged to issue a rule addressing unfair tying and other exclusionary practices in the brokerage or listing of real estate.
Immediately after the Order’s signing, a joint Statement was published by Acting Assistant Attorney General of the DOJ Antitrust Division, Richard Powers, and the new FTC Chair, Lina Khan. The Statement declared that the agencies would be jointly launching a review of the merger guidelines to determine whether they are “overly permissive.” Indeed, the FTC recently approved several measures, including rulemaking changes and broad enforcement authorizations, to spur more enforcement.
The Order establishes a White House Competition Council, which will monitor the progress on and execution of these initiatives. It strongly encourages coordination among the agencies to tackle these objectives in both enforcement and policy development. Shortly after the issuance of the Order, the Attorney General of the United States, Merrick Garland, declared that the DOJ would immediately comply with the “whole of government approach” of the Order—pointing to healthcare, technology, and labor as three areas of regulatory focus and improved collaboration.
While the Order and the related pronouncements are important and signal the direction of the Biden Administration’s antitrust policy, there remain hurdles to full implementation. In particular, some recommended actions may require a change in existing law. Several relevant legislative proposals are currently being discussed in Congress (e.g., Competition and Antitrust Law Enforcement Reform Act (CALERA), S. 225 or Platform Competition and Opportunity Act of 2021 (H.R. 3826)), but the likelihood and timing of legislative action is unclear.
We will continue to monitor the statements, actions, and initiatives undertaken in accordance with the Order and will provide pertinent updates. In the interim, we are available to respond to any specific questions you have about how the Order may affect your business.
1 The Federal Reserve, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency