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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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

Federal Trade Commission Comment Before the National Highway Traffic Safety Administration Regarding the NHTSA Proposed Rule Entitled “Federal Motor Vehicle Safety Standards: Vehicle-to-Vehicle (V2V) Communications,” and the Accompanying Report

The FTC filed a comment on the National Highway Traffic Safety Administration’s (NHTSA) advance notice of proposed rulemaking related to vehicle-to-vehicle communications. As the lead federal agency charged with protecting consumer privacy, the FTC in its comment expresses support for NHTSA’s deliberative, process-based approached to addressing privacy and security risks, which includes a privacy risk assessment. The comment also commends NHTSA for designing a V2V system to limit the data collected and stored to only that which serves its intended safety purpose.

FTC Staff Comment Before the Texas State Board of Dental Examiners Concerning Proposed 22 TEX ADMIN CODE §§ 108.70, 108.74 That Would Restrict the Ability of Texas Dentists to Enter into Agreements with Non-Dentists for the Provision of Admin Services

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FTC staff, in response to a notice requesting public comments, filed a comment urging the TSBDE to reject two proposed rules that would impose new restrictions on the ability of Texas dentists to enter into contracts with non-dentists, such as dental service organizations, for the provision of nonclinical, administrative services. The comment explained that such restrictions may reduce competition, likely resulting in higher prices and reduced access to dental services, especially for underserved populations.

FTC Staff Comment on Financial Crimes Enforcement Network’s Proposed Customer Due Diligence Rule for Financial Institutions

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FTC staff filed a comment on a Notice of Proposed Rulemaking published by the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of Treasury, supporting the proposed Customer Due Diligence Rule. Among other requirements, the proposed rule would require financial institutions to collect information on the individuals who are the beneficial owners of a legal entity when the entity opens an account. The comment notes that the proposed Rule should improve the FTC’s ability to track down those perpetrating fraud against consumers in situations where individuals used legal entities or "shell" companies to disguise their involvement with fraudulent operations.

Federal Trade Commission Comment Before the Federal Communications Commission Regarding the Privacy and Security Practices of Broadband Providers and Their Impact On Broadband Adoption

The FTC filed a comment before the Federal Communications Commission (FCC) in response to its inquiry into the status of broadband availability and deployment to all Americans, in which the FCC asked for comment on, among other things, the relevance of privacy and/or data security concerns to consumer adoption of broadband. The comment provided information on the FTC’s enforcement, policy, and education work related to consumer privacy and data security, as applied to residential broadband internet services. The comment highlighted FTC efforts to promote consumer privacy and data security through rigorous enforcement of the FTC Act, the FCRA, the Children’s Online Privacy Protection Act (COPPA), and the obligations of broadband service providers under these laws.

FTC Staff Comment Before the Consumer Financial Protection Bureau Regarding the Use of Mobile Financial Services By Consumers and Its Potential For Improving the Financial Lives of Economically Vulnerable Consumers

FTC staff filed a comment before the CFPB in response to its request for information on the use of mobile financial systems by consumers and their potential benefits for the financial lives of underserved consumers. The staff comment highlighted consumer protection issues posed by mobile financial services and the steps taken by the FTC to address them. These issues include: the potential liability for unauthorized charges using prepaid or stored value products; unfair billing practices on mobile carrier bills; the privacy of consumers’ personal and financial data; the security of consumers’ personal and financial data; and the potential use of consumers’ information by data brokers and other third parties.