Research and Study
The Commission issued orders under Section 6(b) of the FTC Act to nine social media and video streaming companies: Amazon.com, Inc., ByteDance Ltd., which operates the short video service TikTok, Discord Inc., Facebook, Inc., Reddit, Inc., Snap Inc., Twitter, Inc., WhatsApp Inc., and YouTube LLC. The orders require the recipients to provide data on how they collect, use, and present personal information, their advertising and user engagement practices, and how their practices affect children and teens. The Commission also continued work on its Section 6(b) orders issued last year to five large technology firms, Alphabet Inc. (including Google), Amazon.com, Inc., Apple Inc., Facebook, Inc., and Microsoft Corp requiring them to provide information about prior acquisitions not reported to the antitrust agencies under the Hart-Scott-Rodino (HSR) Act.
In the fall of 2020, the Bureau of Economics hosted its Thirteenth Annual Microeconomics Conference. The two-day workshop brought together scholars working in areas related to the FTC’s antitrust, consumer protection, and public policy missions. The agency also hosted a workshop to examine the potential benefits and challenges to consumers and competition raised by data portability. An FTC workshop on non-compete agreements in the workplace also examined antitrust and consumer protection issues. The FTC held a joint workshop with the FDA on the competitive marketplace for biosimilars. The FTC also held a hearing hosted with DOJ to discuss proposed Vertical Merger Guidelines.
Amicus & Advocacy
The Commission authorized staff to submit two amicus briefs in 2020 in which the agency believed that its experience and expertise would be useful to the court. In the Seventh Circuit,
the FTC brief in UFCW Local 1500 Welfare Fund, et al. v. AbbVie Inc., et al., addressed two legal errors committed by the district court in applying FTC v. Actavis, Inc., 570 U.S. 136 (2013). First, the court seemingly ruled that because the settlements merely allowed “early” competition before AbbVie’s patents expired, they did not contain “Actavis-like” reverse payments and were procompetitive as a matter of law. Second, the court erred to the extent it based dismissal on the public policy favoring settlement. In a joint brief with the Consumer Financial Protection Bureau before the Second Circuit, the Commission urged a reversal in TeWinkle v. Capital One, N.A. The brief argued that the term “applicant” as used in the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691(a)(1), is best read to refer to existing holders of credit as well as persons who have sought but not yet been granted credit.
Providing policymakers with a framework to analyze competition issues is an important component of the FTC’s mission to promote competition for the benefit of consumers. In response to select requests, the FTC advises local, state, and federal entities on the potential competitive implications of pending governmental actions that may have a major impact on consumers.
The FTC responded to the Centers for Medicare and Medicaid Services’ (CMS) request for comments on its Interim Final Rule with Comment Period (IFC). The comment supports the IFC’s provisions that reduce or eliminate restrictive Medicare payment requirements for telehealth and other communication technology-based services during the COVID-19 public health emergency. Staff also wrote to DHS and the Office of the National Coordinator for Health Information Technology to comment on the 21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program Proposed Rule.
Finally, FTC staff, together with the staff of the Antitrust Division of the DOJ, submitted a comment to California raising concerns that California Assembly Bill 1541 would harm competition along the chain of beer distribution in California, to the detriment of California’s consumers.
The Commission continued to oppose the issuance of certificates of public advantage (COPAs), which immunize mergers from antitrust scrutiny. One such advocacy was filed in Texas, relating to the Hendrick Health System and Shannon Health System. Staff also filed comments recommending states allow Advanced Practice Registered Nurses and Certified Registered Nurse Anesthetists to work within the scope of their practice. The advocacies were sent to Ohio, Kansas, and Texas.
The Chairman and FTC staff testified twice to the U.S. Congress in 2020:
Oversight of the FTC (Chairman Joseph Simons, August 5, 2020), before the Senate Committee on Commerce, Science, and Transportation (Statement of Commissioner Rebecca Kelly Slaughter; Statement of Commissioner Noah Joshua Phillips; Statement of Commissioner Rohit Chopra; Statement of Commissioner Christine Wilson); and Consumer Protection Issues Arising from the Coronavirus Pandemic (Andrew Smith, July 21, 2020), before the Senate Committee on Commerce, Science, and Transportation, Subcommittee on Manufacturing, Trade, and Consumer Protection.
Reports and Guidelines
During 2020, the FTC published reports and issued working papers addressing competition issues. The FTC and the DOJ Antitrust Division issued new Vertical Merger Guidelines that outline how the federal antitrust agencies have evaluated the likely competitive impact of vertical mergers and whether those mergers comply with U.S. antitrust law. These new Vertical Merger Guidelines mark the first time the FTC and the DOJ have issued joint guidelines on vertical mergers.
As the spread of COVID-19 took hold of the country, the FTC’s Bureau of Competition and the DOJ’s Antitrust Division jointly announced that they would seek to protect workers on the front lines of the pandemic — including doctors, nurses, first responders, and those who work in grocery stores, pharmacies, and warehouses, among other essential service providers — by using various antitrust laws against those who seek to exploit the current circumstances to engage in anticompetitive conduct in the labor market.
In February 2020, the FTC joined the FDA to release a joint statement promoting competition in biologics markets. The statement listed the joint goals of the two agencies to support appropriate adoption of biosimilars, deter false or misleading statements about biosimilars, and deter anticompetitive behaviors in the industry.
Concerning consumer protection, the Commission filed reports to Congress about: social media bots and deceptive advertising; retailers’ shipping policies; protecting older adults; and two reports outlining the agency’s work related to consumer privacy. The Commission also issued the Consumer Sentinel Network Data Book 2020 and the National Do Not Call Registry Data Book for Fiscal Year 2020.
The agency put out reports about the staff’s study of auto buying practices and about Made in USA claims. Staff also released perspectives papers about: online ticket sales; video game loot boxes; and small business financing.
The Commission released six Data Spotlights drawing on reports submitted from consumers across the country. In 2020, spotlights discussed report data related to: income opportunity schemes; the use of gift cards in scams; fake check scams; scams that begin on social media; online shopping; and the military and identity theft.