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President Biden Signs Executive Order on Promoting Competition in the American Economy President Biden Signs Executive Order on Promoting Competition in the American Economy

President Biden Signs Executive Order on Promoting Competition in the American Economy

On July 9, 2021, President Biden signed an Executive Order with the stated goal of promoting the interests of American workers, businesses, and consumers.

Identifying a number of trends the Biden-Harris Administration believes constrain economic growth, hurts job creation, and threatens our economic standing in the world, this Executive Order aims to enforce antitrust laws to meet the challenges posed by new industries and technologies.

As outlined in the White House fact sheet, the Executive Order established a whole-of-government effort with 72 initiatives across over a dozen agencies with the goal of promoting competition in the American economy. Examples include:
 
  • Labor Markets 
    • Encourages the FTC to ban or limit non-compete agreements.
    • Encourages the FTC to ban unnecessary occupational licensing restrictions that impede economic mobility.
    • Encourages the FTC and DOJ to strengthen antitrust guidance with the goal of preventing employers from collaborating to suppress wages or reduce benefits by sharing wage and benefit information with one another.
  • Health Care
    • Directs the Food and Drug Administration to work with states and tribes to safely import prescription drugs from Canada, pursuant to the Medicare Modernization Act of 2003.
    • Directs the Health and Human Services Administration (HHS) to increase support for generic and biosimilar drugs, which provide low-cost options for patients.
    • Directs HHS to issue a comprehensive plan within 45 days to combat high prescription drug prices and price gouging. 
    • Encourages the FTC to ban “pay for delay” and similar agreements by rule.
    • Directs HHS to consider issuing proposed rules within 120 days for allowing hearing aids to be sold over the counter. 
    • Underscores that hospital mergers can be harmful to patients and encourages the Justice Department and FTC to review and revise their merger guidelines to ensure patients are not harmed by such mergers.
    • Directs HHS to support existing hospital price transparency rules and to finish implementing bipartisan federal legislation to address surprise hospital billing.
    • Directs HHS to standardize plan options in the National Health Insurance Marketplace so people can comparison shop more easily.
  • Transportation
    • Directs the DOT to consider issuing clear rules requiring the refund of fees when baggage is delayed or when service isn’t actually provided—like when the plane’s WiFi or in-flight entertainment system is broken.
    • Directs the DOT to consider issuing rules that require baggage, change, and cancellation fees to be clearly disclosed to the customer.
    • Encourages the Surface Transportation Board to require railroad track owners to provide rights of way to passenger rail and to strengthen their obligations to treat other freight companies fairly.
    • Encourages the Federal Maritime Commission to ensure vigorous enforcement against shippers charging American exporters exorbitant charges.
  • Agriculture
    • Directs USDA to consider issuing new rules under the Packers and Stockyards Act making it easier for farmers to bring and win claims, stopping chicken processors from exploiting and underpaying chicken farmers, and adopting anti-retaliation protections for farmers who speak out about bad practices.
    • Directs USDA to consider issuing new rules defining when meat can bear “Product of USA” labels, so that consumers have accurate, transparent labels that enable them to choose products made here.
    • Directs USDA to develop a plan to increase opportunities for farmers to access markets and receive a fair return, including supporting alternative food distribution systems like farmers markets and developing standards and labels so that consumers can choose to buy products that treat farmers fairly.
    • Encourages the FTC to limit powerful equipment manufacturers from restricting people’s ability to use independent repair shops or do DIY repairs—such as when tractor companies block farmers from repairing their own tractors.
  • Internet Service
    • Prevents ISPs from making deals with landlords that some argue limit tenants’ choices.
    • Revives the “Broadband Nutrition Label” and require providers to report prices and subscription rates to the FCC.
    • Limits excessive early termination fees.
    • Restores Net Neutrality rules undone by the prior administration.
  • Technology
    • Announces an Administration policy of heightened scrutiny of mergers, especially by dominant internet platforms, with particular attention to the acquisition of nascent competitors, the accumulation of data, competition by “free” products, and the effect on user privacy.
    • Encourages the FTC to establish rules on surveillance and the accumulation of data.
    • Encourages the FTC to establish rules barring unfair methods of competition on internet marketplaces.
    • Encourages the FTC to issue rules against anticompetitive restrictions on using independent repair shops or doing DIY repairs of your own devices and equipment.
  • Banking and Consumer Finance
    • Encourages DOJ and the agencies responsible for banking (the Federal Reserve, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency) to update guidelines on banking mergers to provide heightened scrutiny of mergers.
    • Encourages the Consumer Financial Protection Bureau (CFPB) to issue rules allowing customers to download their banking data and take it with them.
Two trade associations—the National Association of Manufacturers and U.S. Chamber of Commerce—have voiced opposition to the order.
 
For more information about federal affairs issues, please contact George Hornedo, Tim Day, and Jarrod Loadholt.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
 
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