Advocacy Filings

When government bodies and other organizations consider cases or policy decisions that affect consumers or competition, the FTC may offer insight and expertise to decision makers by filing an advocacy letter. To find a specific filing, use the filters on this page.

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Joint Statement of the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice to the Virginia Certificate of Public Need Work Group

Matter Number:

V150011

The FTC and DOJ Antitrust Division jointly submitted a statement, in response to a request by Virginia State Delegate Kathy Byron, suggesting that Virginia consider whether its COPN program best serves the needs of its citizens. The statement explained that the agencies historically have urged states to consider repeal or reform of their CON laws because they can prevent the efficient functioning of health care markets, and thus can harm consumers. As the statement described, CON laws create barriers to expansion, limit consumer choice, and stifle innovation. They can also deny consumers the benefit of an effective remedy for antitrust violations and can facilitate anticompetitive agreements. In addition, incumbent providers seeking to thwart or delay entry by new competitors may use CON laws to that end. Arguments favoring CON laws have not been supported by the evidence, the statement noted.

FTC Staff Comment Before the Pennsylvania House of Representatives Regarding Proposed Legislation to Regulate Pre-Need Cemetery and Funeral Merchandise Sales

Matter Number:

V150014

FTC staff submitted a comment, in response to a request from Pennsylvania State Representative Robert W. Godshall, on legislative proposals that would further regulate the pre-need sale of cemetery and funeral merchandise and services in Pennsylvania. “The bills, if enacted, appear to impose additional restrictions and requirements on cemeteries that engage in the pre-need sale of cemetery goods,” the comment states. “These provisions could lessen competition, resulting in potentially higher prices and fewer options for consumers, without countervailing benefits to consumers.” The staff comment addresses three main issues: (1) prohibitions on the pre-need delivery and installation of cemetery merchandise, (2) requirements for merchandise trust funds and refunds when a consumer breaches a pre-need contract, and (3) compliance with the FTC’s Funeral Rule requirements for the sale of merchandise by sellers not covered by the Rule versus specifying state-specific requirements governing such sellers and sales.

FTC Staff Comment to the Tennessee Department of Health Regarding the Implementation of Laws Relative to Cooperative Agreements and the Granting of Certificates of Public Advantage

Matter Number:

V150013

Docket Number:

Proposed Chapter 1200-38-01 of the Hospital Cooperation Act of 1993

FTC staff submitted comments to the Virginia and Tennessee health departments, in response to calls for public comments, as part of those agencies’ respective processes to promulgate proposed rules regarding hospital cooperation agreements in their states. FTC staff offered assistance to each of the two health departments during their reviews of any cooperation agreement applications, to help ensure that any decisions regarding the potential benefits and disadvantages of a proposal are based on a rigorous competition analysis. The comments also reiterated the FTC’s longstanding position that legislation purporting to grant antitrust immunity is unnecessary to encourage procompetitive collaborations among health care providers because such arrangements already would pass muster under the antitrust laws; therefore the new schemes for cooperation agreements would be likely to harm Virginia and Tennessee health care consumers.

FTC Staff Comment to the Virginia Department of Health Regarding Virginia's Rules and Regulations Governing Cooperative Agreements

Matter Number:

V150012

Docket Number:

12 Virginia Administrative Code 5, Chapter 221

FTC staff submitted comments to the Virginia and Tennessee health departments, in response to calls for public comments, as part of those agencies’ respective processes to promulgate proposed rules regarding hospital cooperation agreements in their states. FTC staff offered assistance to each of the two health departments during their reviews of any cooperation agreement applications, to help ensure that any decisions regarding the potential benefits and disadvantages of a proposal are based on a rigorous competition analysis. The comments also reiterated the FTC’s longstanding position that legislation purporting to grant antitrust immunity is unnecessary to encourage procompetitive collaborations among health care providers because such arrangements already would pass muster under the antitrust laws; therefore the new schemes for cooperation agreements would be likely to harm Virginia and Tennessee health care consumers.

FTC Staff Reply Comment Before the State of New York Public Service Commission in the Reforming the Energy Vision Proceeding, Responding To Third-Party Comments on the NY PSC Benefit-Cost Analysis

Matter Number:

V140012

Docket Number:

Case 14-M-0101

The FTC staff submitted a reply comment to the New York State Public Service Commission (NY PSC) regarding that agency’s Reforming the Energy Vision (REV) proceeding. The FTC staff comment recommended that the principles set forth in the NY PSC Staff White Paper on Benefit-Cost Analysis (Staff BCA) recognize how customers can benefit from a greater ability to match the electric services they receive to their preferences among such services. The comment also noted that the principles need to take into account a broader spectrum of benefit and cost criteria, such as service quality, customization of services to match customer preferences, and the effects of increased competition on price. It also suggested that the Staff BCA include sensitivity analysis to allow electricity distributors and the NY PSC to respond appropriately if future technological, economic, and environmental conditions differ from conditions that the Staff BCA currently anticipates.

FTC Staff Comment Before the Food and Drug Administration Regarding the Current Use of Human Drug and Biological Products Labeled As Homeopathic, and the FDA's Regulatory Framework For Such Products

Matter Number:

P114505

Docket Number:

80 Fed. Reg. 16327 (Mar. 27, 2015)

FTC staff has recommended that the U.S. Food and Drug Administration (FDA) reconsider the framework it uses to regulate homeopathic medications because it may appear to conflict with the FTC’s advertising substantiation doctrine in ways that could harm consumers and cause confusion for advertisers. The comment discusses the mistaken belief by some advertisers that homeopathic products that are in compliance with the FDA policy guide do not have to comply with FTC advertising substantiation requirements. The comment also raises the concern that the FDA’s current framework may lead some companies to skirt more stringent regulations for OTC drug products or dietary supplements simply by labeling them as homeopathic or combining homeopathic ingredients with dietary supplements or other non-homeopathic ingredients.

FTC Staff Comment, and Concurring Comment of Commissioner Wright, Regarding North Carolina House Bill 200, Which Would Exempt Diagnostic Centers, Ambulatory Surgical Facilities and Psychiatric Hospitals From Certificate of Need Regulation

Matter Number:

V150009

FTC staff submitted a comment, in response to a request by North Carolina State Representative Marilyn W. Avila, regarding the possible competitive effects of a legislative proposal to exempt diagnostic centers, ambulatory surgical facilities and psychiatric hospitals in North Carolina from CON laws. The staff comment expressed support for the bill. As the comment explained, CON laws can restrict entry and expansion, limit consumer choice, and stifle innovation. Additionally, the CON process can be exploited by firms to thwart or delay entry by new competitors and can obstruct efforts to restore competition that has been lost to an anticompetitive merger.

FTC Staff Comment Regarding Amendments to the Minnesota Government Data Practices Act Regarding Health Care Contract Data, Which Would Classify Health Plan Provider Contracts As Public Data

Matter Number:

V150008

Docket Number:

N/A

FTC staff submitted a comment, in response to a request by Minnesota state legislators Joe Hoppe and Melissa Hortman, regarding the possible competitive effects of a recently enacted amendments to the Minnesota Government Data Practices Act that would treat the State’s health plan contract terms as presumptively government records that the public can ask to see by making a freedom of information request. According to the staff comment, disclosing the negotiated terms of health plan contracts may offer little benefit to health care consumers but could pose a substantial risk of reducing competition in health care markets. For example, the amendments may lead to the disclosure of competitively sensitive price and cost information that could enable health care providers to see what terms health plans are offering their competitors and to use that information against the plans during negotiations. Such disclosure of price and cost information could also enable competing health care providers to agree in advance on terms that they each will offer to health plans, instead of trying to outbid each other by offering better terms to win the contract. These concerns are heightened in Minnesota’s health care markets, which already see reduced competition because there are fewer competing providers.

FTC Staff Comment to New York State Senator Ranzenhofer and New York State Assemblyman Abinanti Concerning SB 2647 and AB 2888 Authorizing Certain Agreements for the Creation and Operation of a Health Care Delivery System Network

Matter Number:

V150005

FTC staff submitted a comment to New York Senator Michael H. Ranzenhofer and New York Assemblyman Thomas Abinanti regarding the possible effects of a legislative proposal that would authorize Erie County Medical Center Corporation and Westchester County Health Care Corporation to collaborate with other public and private health care providers and payers. The proposed legislation would provide them and their collaborating entities with broad immunity from liability under federal and state antitrust laws – even though this purported immunity would cover the kinds of information sharing and joint contract negotiation that are likely to result in reduced competition and higher prices for consumers. “Because procompetitive or competitively benign health care collaborations already are permissible under the antitrust laws, the main effect of this legislation is to immunize conduct that would not generate efficiencies that are greater than consumer harms, and therefore would not pass muster under the antitrust laws,” the staff comment stated.

FTC Staff Comment Regarding Oregon Senate Bill 231A, Which Includes Language Intended To Provide Federal Antitrust Immunity To Conversations, Information Exchanges, and Agreements Among Participants (Including Competitors) In Oregon's Health Care Markets

Matter Number:

V150007

FTC staff submitted a comment, in response to a request by Oregon State Senator Chip Shields, expressing concern that a broad antitrust exemption proposed in Oregon Senate Bill 231A for health care collaborations was unnecessary because antitrust law already permits such efforts that benefit consumers. While staff commended the underlying goal of the bill – to study and improve the delivery of primary care services to Oregon health care consumers, and to promote new collaborations among Oregon health care providers, payers, and other industry participants – the letter maintained that the broad purported antitrust exemption was based on misunderstandings about application of the antitrust laws to such endeavors. “FTC staff respectfully suggests that the proposed Bill is likely to lead to increased health care costs and decreased access to health care services for Oregon consumers.”

FTC Staff Comment Supporting Michigan Senate Bill 268, And Recommending That the Michigan Legislature Consider Expanding the Bill To Permit Automobile Manufacturers To Sell New Motor Vehicles Directly To Consumers

Matter Number:

V150004

FTC staff submitted a comment, in response to a request from Michigan State Senator Darwin L. Booher, on the possible competitive effects of a legislation that would permit manufacturers of a category of vehicles, “autocycles,” to choose whether to sell directly to consumers, through dealers, or through some combination of the two. The staff comment states that the bill is likely to promote competition and benefit consumers by opening this category of motor vehicles to competition in methods of distribution. However, in the staff’s view, the bill “does not go far enough,” and would “largely perpetuate the current law’s protectionism for independent franchised dealers, to the detriment of Michigan car buyers.” The comment urges Michigan lawmakers to consider repealing the ban on direct-to-consumer sale of motor vehicles by auto manufacturers, and instead “permit manufacturers and consumers to reengage the normal competitive process that prevails in most other industries.”

Comment of the United States Federal Trade Commission and the United States Department of Justice Before the United States Department of Commerce Patent and Trademark Office: In the Matter of Request For Comments On Enhancing Patent Quality

Matter Number:

V150006

Docket Number:

PTO-P-2014-0043

The FTC and the Department of Justice jointly submitted comments to the United States Patent and Trademark Office (PTO) in response to the PTO’s comprehensive initiative to increase the quality of granted patents. The PTO initiative focuses on excellence in work products, measuring patent quality, and customer service. The comments commend the PTO for its continuing efforts to enhance patent quality, and support efforts to give clearer notice of the boundaries of claimed inventions. “Clearer patent notice can encourage market participants to collaborate, transfer technology, or – in some cases – to design-around patents, thus leading to a more efficient marketplace for intellectual property and the goods and services that practice such rights,” the comments state.

FTC Staff Comment To the New York State Department of Health Regarding the Potential Competitive Impact of COPA Applications Filed by Adirondack Health Institute PPS, Advocate Community Partners PPS, and Staten Island PPS

Matter Number:

V150005

In a comment to the New York State Department of Health, FTC staff expressed concern that New York’s COPA regulations – which purport to provide antitrust immunity to certain approved health care collaboratives – are unnecessary because antitrust law already permits health care collaborations that benefit consumers. The comment expressed “strong concerns that the COPA regulations, as well as the underlying authorizing legislation, are based on inaccurate premises about the antitrust laws and the value of competition among health care providers.” The comment opined that allowing certain health care collaboratives to obtain COPA approval was likely to lead to increased health care costs and decreased access to health care services for New York consumers.

FTC Staff Comment To Representative Jeanne Kirkton, Missouri House of Representatives, Regarding the Competitive Impact of Missouri House Bill 633 On Collaborative Practice Arrangements Between Physicians and Advance Practice Registered Nurses

Matter Number:

V150002

FTC staff submitted a comment, in response to a request from Missouri State Representative Jeanne Kirkton, regarding legislation that would amend Missouri’s Nurse Practice Act to remove some, and impose other, constraints on collaborative practice arrangements between physicians and APRNs. As stated in the comment, FTC staff encourages the legislature to “scrutinize claimed health and safety justifications for its current supervision and collaboration requirements, review carefully whether any claims of potential patient harm are adequately substantiated and well founded, and evaluate whether the collaboration requirements are warranted. . . . If APRNs and other health care professionals are permitted to practice to the extent of their education, training, and abilities, the state could benefit from enhanced competition, including potentially lower costs and greater patient access to care.”

FTC Staff Comment Before the Office of the National Coordinator For Health Information Technology, Regarding Its Draft Shared Nationwide Interoperability Roadmap For Health Information Technology Systems

Matter Number:

V150003

FTC staff submitted a comment to ONC, in response to ONC’s request for comments on its draft Shared Nationwide Interoperability Roadmap. The comment offered guidance on promoting competition (as well as the privacy and security of consumer data) as part of ONC’s plan to increase the adoption of interoperable health IT systems by 2024. With respect to competition issues, the comment encouraged ONC to consider how the economic interests of health care providers and health IT vendors align with the benefits of interoperability, such as lower health care costs, improved population health, empowered consumers and ongoing innovation. The comment also offered guidance on shared governance mechanisms and the development of technical standards. To balance the benefits of standard setting, such as lower switching costs and reduced barriers to entry, with its potential risks, the staff comment encouraged ONC “to consider taking steps to ensure that coordinated governance by market participants does not unduly distort competition.”

FTC Staff Comment Before the Federal Communications Commission On Public Notice DA 14-1700, Regarding the Issues Relating To Carrier Implementation of Call-Blocking Technology

Matter Number:

P034412

Docket Number:

CG Docket No. 02-278

WC Docket No. 07-135

FTC staff submitted a comment to the Federal Communications Commission (FCC) in response to a public notice seeking input on call-blocking. Staff stressed that consumers continue to be barraged by unwanted telemarketing calls, and that a large part of the solution is “call-blocking technology – i.e., a ‘spam filter’ for the phone. The carriers have so far avoided adopting such technology, claiming that the FCC legal framework does not allow phone companies to block calls, even if their customer requests call-blocking. Concluding the comment, the FTC writes that, “An affirmative statement from the FCC that common carriers can offer call-blocking services to their consumers without violating their common carriage obligations would be in the best interest of American consumers.”

FTC Staff Comment Before the Department of Defense (DoD) on Proposed Amendments to DoD’s Regulations Implementing the Military Lending Act

Docket Number:

DOD-2013-OS-0133

The Federal Trade Commission filed a comment on the Department of Defense’s proposed amendments to its regulation implementing the Military Lending Act (“MLA”). FTC staff supports DoD’s efforts to implement strong consumer protections for service members, and gave their support for a number of the proposed amendments, including the new framework for creditors to ensure that consumers entitled to the MLA’s protections are accurately identified, as well as efforts to stop creditors that evade MLA coverage while offering a substantially similar product to those products currently covered by the existing rule. FTC staff was concerned, however, about the proposal to give certain types of creditors, such as insured credit unions, limited or complete exemptions from the regulations. Staff was also opposed to the elimination of the requirement that information be disclosed “clearly and conspicuously.”

FTC Staff Comment Before the Commission on Dental Accreditation Concerning Proposed Accreditation Standards for Dental Therapy Education Programs

Matter Number:

V150000

FTC staff submitted a comment to CODA, in response to CODA’s request for public comments on the 2014 version of its proposed accreditation standards for dental therapy education programs. The comment urged CODA to finalize and adopt accreditation standards, which likely will benefit consumers. In a previous comment to CODA in December 2013, FTC staff commended CODA’s then-proposed standards as an important first step in encouraging the development of a nationwide dental therapy profession, and recommended revisions to portions of the standards that may have limited competition for dental services. Now that many of those concerns had been addressed, the FTC staff comment urged CODA “to finalize and adopt proposed standards without unnecessary delay, so that the development of this emerging service model can proceed, and consumers can reap the likely benefits of increased competition.”

Comment Filed by Jessica Rich, Discussing Voluntary Code of Conduct for Utilities and Third Parties Providing Consumer Energy Use Services

BCP Director Jessica Rich wrote a letter to the Federal Smart Grid Task Force, of the U.S. Department of Energy regarding their draft Voluntary Code of Conduct (VCC) for protecting consumer energy use data. She suggested three changes to the draft VCC. First, she suggested adding a requirement for “just-in-time” consumer disclosure, particularly for mobile apps. Second, she suggested that all disclosures be required to be “clear and conspicuous.” Third, she suggested that the “prevailing state/local business practice” exception, for not following portions of the code, be clarified so that it is not interpreted as an individual company’s decision whether or not to follow parts of the VCC, after they have adopted it.

Federal Trade Commission Staff Reply Comment to the New York State Public Service Commission on “Reforming the Energy Vision” Project

Matter Number:

V140012

The FTC staff submitted a reply comment in response to certain comments filed with the New York State Public Service Commission (NY PSC) regarding the proposal to authorize the establishment of entities known as Distributed System Platform (DSP) operators, which would be responsible for balancing electricity supply and demand on local, lower-voltage distribution lines. The FTC staff comment recommended the use of a competitive procurement process to select the entities that will serve as DSP operators. This would allow a variety of bidders to show how they could keep administrative costs low, remove incentives to discriminate against independent distributed energy resources, and provide other benefits to electricity customers. The FTC staff comment also encouraged the NY PSC to use a competitive procurement approach to appoint independent market monitors to evaluate the performance of DSP operators, and suggested ways to improve the performance of the electric distribution system.

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