A “Whole-of-Government” Approach to Competition Policy
The lengthy and sweeping EO, which was signed on July 9, 2021, sets forth 72 competition-related initiatives to be carried out by various federal agencies, with the goal of “promot[ing] the interests of American workers, businesses, and consumers.”4 Rather than focusing exclusively on individual agency action, however, the EO specifically recognizes that a “whole-of-government approach is necessary to address overconcentration, monopolization, and unfair competition in the American economy,”5 and therefore, it emphasizes inter-agency cooperation and coordination in addressing competition concerns. Indeed, the EO charges the Competition Council with not only “delivering on the 72 initiatives identified in the Executive Order,” but also “collaborating on addressing pressing competition problems across the economy, and finding new ways of delivering concrete benefits to America’s consumers, workers, farmers, and small businesses.”6 Additionally, under the EO, the new Council is specifically tasked with “develop[ing] procedures and best practices for agency cooperation and coordination on matters of overlapping jurisdiction,” and “work[ing] across agencies to provide a coordinated response” to competition issues.7 With the creation of the Council, the EO thus not only encourages the federal agencies to work individually (such as by adopting “pro-competitive regulations and approaches to procurement and spending”8), but also requires them to work together in addressing U.S. competition concerns.
Ahead of Schedule on Key Initiatives in Transportation and Healthcare
At the September 10 meeting, Council Chair Brian Deese — Director of the National Economic Council and the Assistant to the President for Economic Policy — commended the Council members for their efforts on over a dozen initiatives undertaken in the two months since the EO was signed.9 The Council received briefings from at least five federal agencies, including the Department of Health and Human Services (HHS), the Department of Transportation (DOT), the United States Department of Agriculture (USDA), the Department of Justice (DOJ), and the Federal Trade Commission (FTC) — on their recent efforts to implement the EO and “bolster competition across key industries.”10 Those efforts include a major initiative by DOT to obtain refunds for thousands of people whose flights were cancelled due to COVID-19, as well as its investigation into the refund practices of 18 airlines, its formal complaint against Air Canada for refund delays, and its success in getting nine airlines to change their refund policies.11 Other topics reportedly included corporate merger reviews, an inquiry into excessive fees charged by ocean carriers, landlords who prevent renters from shopping around for internet services, and a nearly 20-fold increase in fines for hospitals that fail to disclose their prices to the public.12 The Council was also joined by two new members: SEC Chair Gary Gensler and Commodity Futures Trading Commission Acting Chair, Rostin Behnam, signaling an even greater expansion of the focus on competition issues throughout the federal government.13
In a press briefing after the meeting, the White House emphasized that the Council members have met every deadline set out in the EO so far, and have also reached several milestones ahead of schedule.14 In the healthcare sector — which the EO specifically emphasizes should be a primary focus area for competition enforcers, including, specifically, prescription drug markets15 — HHS Secretary Xavier Becerra said that the agency has already begun acting to reduce high prescription drug costs, including by holding meetings with consumer groups, independent experts and researchers, and stakeholders from across the healthcare system.16 Secretary Becerra also noted that HHS intends to specifically address “[d]elay tactics and abusive conduct in the prescription drug market” by “promoting the development and availability of biosimilar and generic products to generate greater competition and lower prices in the market.”17 Other areas of particular focus for competition enforcement authorities under the EO include labor markets, the tech sector, and agricultural markets18 — and, with respect to the latter, the USDA’s briefing at the September 10 meeting is an indicator that key initiatives in agriculture are likely already underway.
Expect Additional, Swift Action by Other Federal Agencies
The concrete actions taken by DOT and HHS since the President’s July Order illustrate the seriousness and expediency with which the federal agencies are effectuating their mandate under the EO. We expect that other agencies tasked with implementing the dozens of initiatives under the EO will announce similar action in the coming months across a wide-range of industries. Companies should continue to monitor for any federal programs or policies that may directly impact their current business practices, and seek guidance on new agency rules and regulations to ensure full compliance under the law. As additional agencies continue to roll out new programs and announce detailed policies — including the DOJ Antitrust Division and FTC (see, for example, our analysis regarding the FTC’s recent action to rescind prior guidance and implement a progressive agenda) — we will continue to provide updates and analysis to keep you informed of these important developments.
1 Press Release, Readout of the Inaugural Meeting of the White House Competition Council, The White House Briefing Room (Sept. 10, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/10/readout-of-the-inaugural-meeting-of-the-white-house-competition-council/ [hereinafter “White House Readout”].
2 Exec. Order No. 14,036 (Promoting Competition in the American Economy), 86 Fed. Reg. 36,987 (July 9, 2021), https://www.govinfo.gov/content/pkg/FR-2021-07-14/pdf/2021-15069.pdf [hereinafter “EO”]; see also Fact Sheet: Executive Order on Promoting Competition in the American Economy, The White House Briefing Room (July 9, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/ [hereinafter “Fact Sheet”] (noting that the Order “includes 72 initiatives by more than a dozen federal agencies to promptly tackle some of the most pressing competition problems across our economy”).
3 EO at Section 2(g).
4 Id. at Preamble.
5 Id. at Section 2(g).
6 White House Readout.
7 EO at Sections 4(b)(ii), 4(c).
8 Id. at Section 2(g).
9 White House Readout.
10 Id.; see also Press Briefing by Press Secretary Jen Psaki, September 10, 2021, The White House Briefing Room, https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/10/press-briefing-by-press-secretary-jen-psaki-september-10-2021/ [hereinafter “Press Briefing”].
11 See Press Briefing.
12 See Associated Press, White House Competition Council Seeks Lower Consumer Prices, U.S. News (Sept. 10, 2021), https://www.usnews.com/news/business/articles/2021-09-10/white-house-competition-council-seeks-lower-consumer-prices.
13 White House Readout.
14 See Press Briefing.
15 EO at Section 5(h)(iii).
16 Press Release, Remarks by HHS Secretary Xavier Becerra at the White House Competition Council Meeting (Sept. 10, 2021), https://www.hhs.gov/about/news/2021/09/10/remarks-hhs-secretary-xavier-becerra-white-house-competition-council-meeting.html.
18 Fact Sheet.