On July 9, 2021, President Joe Biden issued an Executive Order on Promoting Competition in the American Economy. The Order states that “[r]obust competition is critical to preserving America’s role as the world’s leading economy” but that “over the last several decades, as industries have consolidated, competition has weakened in too many markets,” leading to greater inequality and issues for consumers and workers, among others.
To address these perceived challenges, the Order adopts a “whole of government” approach to addressing anti-competitive behavior. The Order bases this effort on the anti-trust statutes (the Clayton Act, the Sherman Act, and the Federal Trade Commission Act) as well as industry-specific fair competition and anti-monopolization laws (e.g., the Dodd-Frank Act; the Packers and Stockyards Act).
Under the Order, federal agencies are to “combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony—especially as these issues arise in labor markets, agricultural markets, internet platform industries, healthcare markets (including insurance, hospital, and prescription drug markets), repair markets, and United States markets directly affected by foreign cartel activity.”
The Order identifies specific areas for federal agencies to take action. These include:
- The Federal Trade Commission is directed to use its statutory rulemaking authority under the Federal Trade Commission Act to address: the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility; unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy; unfair anti-competitive restrictions on third-party repair or self-repair of items; unfair anti-competitive conduct or agreements in the prescription drug industries; unfair competition in major internet marketplaces; unfair occupational licensing restrictions; unfair tying practices or exclusionary practices in the brokerage or listing of real estate; and any other unfair industry-specific practices that substantially inhibit competition.
- The Secretary of Agriculture is directed to undertake rulemaking to address the unfair treatment of farmers and improve conditions of competition in the markets for their products under the Packers and Stockyards Act to strengthen regulations concerning unfair, unjustly discriminatory, or deceptive practices and undue or unreasonable preferences, advantages, prejudices, or disadvantages.
- The Secretary of the Treasury, through the Administrator of the Alcohol and Tobacco Tax and Trade Bureau, is directed to rescind or revise any regulations of the beer, wine, and spirits industries that unnecessarily inhibit competition; and reduce any barriers that impede market access for smaller and independent brewers, winemakers, and distilleries.
- The Federal Communications Commission is directed to revise “net neutrality” regulations that were eliminated in the previous Administration; make it easier for consumers to terminate cable, cell, broadband, and other communications services contracts early without paying excessive early termination fees; and prevent landlords and cable and internet service providers from inhibiting tenants’ choices among providers.
- The Secretary of Transportation is directed to enhance consumer access to airline flight information to promote access to a broader set of available flights, including by new or lesser-known airlines; issue a rule to require airlines to refund baggage fees when a passenger’s luggage is substantially delayed and other ancillary fees when passengers pay for a service that is not provided; and take action to promote new aerospace-based transportation technologies, such as low-altitude unmanned aircraft system deliveries, advanced air mobility, and high-altitude long endurance operations from anti-competitive behavior and monopolization.
- The Chair of the Surface Transportation Board is encouraged to consider commencing or continuing a rulemaking to strengthen regulations pertaining to reciprocal switching agreements and other rulemakings pertaining to any other relevant matter of competitive access, including bottleneck rates, interchange commitments, or other areas to promote competition.
- The Chair of the Federal Maritime Commission is encouraged to consider rulemakings to improve detention and demurrage practices and enforcement of related Shipping Act prohibitions.
- The Secretary of Health and Human Services is directed to: promote the wide availability of low-cost hearing aids; support existing price transparency initiatives for hospitals, other providers, and insurers; implement standardized options in the national Health Insurance Marketplace and any other appropriate mechanisms to improve competition and consumer choice; and undertake efforts to prevent price gouging for pharmaceuticals.
- The Director of the Consumer Financial Protection Bureau is encouraged to issue rules to facilitate the portability of consumer financial transaction data so consumers can more easily switch financial institutions and use new, innovative financial products; and enforce the prohibition on unfair, deceptive, or abusive acts or practices in consumer financial products or services.
The Executive Order by itself does not create any new legal requirements, nor does it impose any new liability. However, it instructs federal agencies to create new rules which have the potential to significantly impact businesses. These new rules are already in process or will be initiated soon. Interested parties can help inform policymakers and take part in the rulemaking process, and Jordan Ramis PC’s attorneys can help make sure these efforts have the maximum impact. For more information about the President’s wide-ranging new Order, how it may affect your business, and how to take part in shaping new rules, please contact us.
Gregory Zerzan is a Jordan Ramis PC attorney with legislative, regulatory, and cabinet agency experience who advises clients through their interactions with Congress and federal agencies. Contact him at firstname.lastname@example.org or (503)-598-7070.