President Biden’s Broad Executive Order Emphasizes Antitrust Enforcement Across Many Industries

On July 9, 2021, President Biden issued a wide-ranging Executive Order (EO) establishing a government-wide policy to promote economic competition and laying out 72 specific initiatives seeking “to promote the interests of American workers, businesses, and consumers” across the economy. The underlying policy concerns driving the EO are said to include a belief that federal government inaction has led to less competition in a number of industries. With the EO, the Biden Administration appears committed to placing a renewed emphasis on promoting competition through aggressive antitrust enforcement.

Overview

The EO includes certain initiatives aimed at specific industries, such as agriculture, information technology, pharmaceuticals and healthcare, telecommunications, and financial services, while other initiatives target the economy more generally. To that end, the EO proclaims that “a whole-of-government approach is necessary to address overconcentration, monopolization, and unfair competition in the American economy” and identifies at least fifteen different governmental departments and agencies that are tasked with protecting fair competition.¹

Labor Markets: Among priorities enumerated by the EO are for the FTC Chair to consider exercising the Commission’s statutory rulemaking authority to curtail the use of non-compete clauses and other agreements that limit worker mobility and to address other practices that may tend to inhibit competition, such as unfair occupational licensing restrictions and improper data collection and surveillance practices.²

Industry-specific Provisions:  In his signing statement, President Biden specifically identified three industries that are expected to be priorities for antitrust enforcement, calling out a perceived lack of competition and increased concentration “in big agriculture, in big tech, [and] in big pharma,” and the EO specifies a variety of actions specific to each industry.

Agriculture: Among other agricultural initiatives, the EO urges the Department of Agriculture to use its rulemaking authority to enhance transparency with respect to “Product of USA” labels, “products that support fair treatment of farmers and agricultural workers and sustainable agricultural practices,” and price discovery within the cattle and other livestock markets.³ The EO also calls for enhanced tools to protect whistleblowers and steps to address restrictions imposed by powerful manufacturers that prevent farmers from repairing their own equipment, and demands a report from the Department of Agriculture (which is directed to consult with the FTC) on the effect of retail concentration on competition in food industries.

High Technology Sector: With respect to “Big Tech,” the EO pledges to “meet the challenges posed by new industries and technologies, including the rise of the dominant Internet platforms,” identifying acquisitions of nascent competitors, aggregation of data, surveillance of users, and network effects as areas that warrant closer scrutiny.⁴ The EO also urges the FTC to exercise its rulemaking authority to address unfair competition in major Internet marketplaces and directs the Secretary of the Treasury to issue a report on the effects of large technology firms’ and other non‑bank companies’ entry into consumer finance markets.⁵

Pharmaceuticals: In the pharma space, the EO directs the FDA to work with states to permit importation of drugs from Canada and directs the Department of Health and Human Services to lower prices and improve access to prescription drugs and biologics, including by clarifying and improving the approval framework for generic drugs and biosimilars.⁶ Another provision directs HHS to submit a report within 45 days with a plan “to continue the effort to combat excessive pricing of prescription drugs and enhance domestic pharmaceutical supply chains, to reduce the prices paid by the Federal Government for such drugs, and to address the recurrent problem of price gouging.” The EO also encourages the FTC to use its rulemaking authority to curtail so-called “pay for delay” patent settlement agreements.⁷

Other Industries: The EO also includes directives to federal agencies, some general and some specific, focused on regulation and enforcement in particular industries, including:

• Telecommunications - The EO encourages the Chair of the Federal Communications Commission to re-adopt “Net Neutrality” rules, to amend the rules for spectrum auctions to lessen spectrum license concentration, and to use its rulemaking authority to prohibit unjust or unreasonable early termination fees, require clear disclosure of plan costs, and prevent landlords and service providers from limiting tenants’ provider choices.
• Airlines - The EO directs the Secretary of Transportation to enhance consumer access to airline flight information and draft a rule mandating baggage fee refunds when luggage is substantially delayed. The EO also directs the Department of Transportation to submit a report on the failure of airlines to provide timely refunds for flights cancelled as a result of COVID-19.
• Rail and Shipping - The EO encourages the Surface Transportation Board and the Federal Maritime Commission to “vigorously enforce,” respectively, on-time performance requirements adopted pursuant to the Passenger Rail Investment and Improvement Act of 2008 and the ban on unjust and unreasonable practices in the context of detention and demurrage pursuant to the Shipping Act.
• Healthcare - In addition to the pharmaceutical industry provisions described above, the EO directs the Secretary of HHS to draft a rule promoting availability of low-cost hearing aids over the counter and to implement standardized options in the national Health Insurance Marketplace.
• Defense - The EO directs the Secretary of Defense to submit a review of the state of competition within the defense industrial base, as well as a report outlining a plan for avoiding procurement terms that prevent service members from repairing their own equipment.
• Alcohol beverages - The EO directs the Secretary of the Treasury to submit a report assessing the market structure of the beer, wine and spirits industries, including an assessment of barriers to entry. In addition to potentially exclusionary or discriminatory distribution practices and anticompetitive consolidation, the EO identifies as an area of concern unnecessary trade practice regulations (such as bottle size or labeling restrictions) that may inhibit competition.
• Financial Services - The EO encourages the Director of the Consumer Financial Protection Bureau to use its rulemaking authority to ensure that consumers can more easily retain their financial transaction data when switching institutions.

White House Competition Council: In addition to the EO’s policy objectives, it establishes a new White House Competition Council within the executive branch, which will meet semi-annually.⁸ Designed to coordinate competition-related initiatives across agencies, the Council will be led by the Assistant to the President for Economic Policy and Director of the National Economic Council and will also include the Attorney General, the Administrator of the Office of Information and Regulatory Affairs, and the Secretaries of Defense, Agriculture, Commerce, Labor, Health and Human Services, Transportation, and the Treasury. The Council is to invite other federal officials, notably the Chairs of the FTC and FCC, to participate on a discretionary basis.

Analysis

The EO is only the latest in a series of Biden Administration moves to prioritize antitrust enforcement. In March, President Biden appointed Tim Wu, an outspoken advocate of breaking up large technology platforms, as a White House adviser, and followed that up last month with the appointment of Lina Khan to be FTC Chair. Khan first gained notoriety by arguing for a significant overhaul for the way the antitrust laws are applied , with a particular focus on large technology companies. While President Biden has not yet nominated anyone to lead the Antitrust Division of the Department of Justice and there has been no announcement of a permanent Director of the FTC’s Bureau of Competition, the appointments he has made clearly signal a more aggressive approach to antitrust enforcement.

The FTC already has taken significant steps since FTC Chair Khan’s appointment last month, including the holding of its first open Commission meeting in decades. At this public meeting, the Commissioners voted along partisan lines to adopt measures intended to broaden the Commission’s authority to bring cases under Section 5 of the FTC Act and to enhance the ability of FTC staff to enforce compulsory investigatory process. Another open meeting is set for July 21, at which Commissioners will discuss whether to rescind a 1995 policy statement limiting the use of “prior approval” requirements that compelled companies settling merger cases by consent decree to seek approval before finalizing further acquisitions in the same industries.

These executive branch developments coincide with renewed Congressional interest in new antitrust legislation. In February, Senator Amy Klobuchar (D-MN), Chair of the Judiciary Committee’s Antitrust Subcommittee, introduced the Competition and Antitrust Law Enforcement Reform Act of 2021 to “overhaul[] and moderniz[e]” US antitrust laws. That expansive Democratic bill failed to attract any Republican co-sponsors, but a number of more targeted bills were introduced in the House in June with bipartisan support. Four of these bills expressly target large technology platform companies, prohibiting covered platforms from favoring their own products, providing the DOJ and FTC with the authority to bring actions to block acquisitions or force platforms to sell off businesses that create conflicts of interest, and requiring platforms to improve users’ ability to transfer their data to other products.⁹ Another proposed bill would increase enforcement agency budgets.

Although the EO is not yet even a week old, there are already signs that it could lead to significant changes. For instance, one provision aimed at reducing anticompetitive consolidation “encourage[s]” the Attorney General and FTC Chair to consider whether to revise the agencies’ joint horizontal and vertical merger guidelines.¹⁰ Within hours, FTC Chair Lina Khan and DOJ Acting Assistant Attorney General of the Antitrust Division Richard Powers released a joint statement pledging to “jointly launch a review of our merger guidelines with the goal of updating them to reflect a rigorous analytical approach consistent with applicable law.”

Conclusion: Ultimately, while certain provisions of the EO are specific and more or less self-executing, such as the directive for HHS to facilitate the sale of hearing aids over the counter, many more are merely “encourage[ments]” or directions for federal agencies to conduct reviews or studies. While the agencies are certain to take these directives seriously, it remains to be seen how many of the them will ultimately lead to concrete changes, and if so, what the specifics of those changes will be. Moreover, any significant rulemaking is likely to be challenged in court, potentially taking years to resolve. It already is clear, however, that the Biden administration is committed to placing a strong emphasis on promoting competition through aggressive antitrust enforcement across a range of markets and industries.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.