APRIL 2021
Acting FTC Chairwoman Rebecca Kelly Slaughter released the Commission’s 2020 Annual Highlights, emphasizing the agency’s ongoing efforts during the COVID-19 pandemic to protect consumers, promote competition, and engage in international law enforcement cooperation and policy initiatives.
Competition: In 2020, the Commission sued to block or unwind an unprecedented nine mergers and negotiated settlements to prevent harm in 12 transactions. Ten other deals were abandoned in the face of antitrust concerns raised in FTC investigations. The FTC also took aggressive and innovative non-merger antitrust enforcement action including a complaint against Martin Shkreli and Kevin Mulleady, and the companies they used to protect a 4000% price increase on a life-saving drug, as well as the groundbreaking monopolization case against Facebook alleging that it illegally maintained its personal social networking monopoly; the lawsuit seeks to unwind Facebook’s acquisitions of Instagram and WhatsApp.
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Consumer Protection and Privacy: As the pandemic unfolded, the FTC sued multiple companies that failed to deliver on promises to quickly ship critical personal protective equipment and companies that lured consumers into income scams. The agency sent hundreds of warning letters to marketers that made false and deceptive claims related to supposed treatments for COVID-19, sued companies that did not correct their claims, and sent out more than one hundred blog posts to educate consumers about COVID-19 scams and remind businesses about their responsibilities regarding honest advertising. As millions headed to virtual platforms to stay connected during the pandemic, the FTC challenged misleading claims by Zoom about how it handled users’ information.
International Cooperation: The Highlights also detail the FTC’s international cooperation, including enforcement-related cooperation and international policy initiatives with competition, consumer protection, and privacy agencies and international organizations. Despite COVID-19-related challenges, the FTC cooperated with international counterpart agencies on 32 merger and anticompetitive conduct cases and worked with foreign agencies or multilateral organizations in 41 consumer protection and privacy matters. The agency also entered into the Multilateral Mutual Assistance and Cooperation Framework (MMAC) to promote enhanced case cooperation among the U.S. antitrust agencies and those of Australia, Canada, New Zealand, and the U.K., and obtained Congressional reauthorization of the U.S. SAFE WEB Act, a key tool for the FTC to combat cross-border fraud and other misconduct . Click for more data or the full report.
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The U.S. Court of Appeals for the Fifth Circuit has upheld the FTC’s determination that Impax Laboratories engaged in an illegal pay-for-delay, or “reverse payment,” settlement to block consumers’ access to a lower-cost generic version of Endo Pharmaceuticals Inc.’s branded extended-release opioid pain reliever, Opana ER. Under the settlement, Impax had agreed to stay out of the market for two-and-a-half years in exchange for an unjustified $112 million payment from Endo. A separate 2021 case, in which the FTC charged Endo, Impax, and Impax’s owner, Amneal Pharmaceuticals, with illegally eliminating competition in the market for oxymorphone ER remains pending before the U.S. District Court for the District of Columbia.
The FTC has challenged Illumina’s $7.1 billion proposed acquisition of Grail. Grail is one of several competitors racing to develop liquid biopsy tests that can screen for multiple types of cancer in asymptomatic patients at very early stages using DNA sequencing. According to the complaint, as the only viable supplier of next-generation sequencing (NGS) for these multi-cancer early detection, or MCED, tests in the United States, Illumina would be able to raise prices charged to Grail competitors for NGS instruments and consumables, impede Grail competitors’ research and development efforts, or refuse or delay executing license agreements that all MCED test developers need to distribute their tests to third-party laboratories.
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The FTC and its counterpart competition enforcement agencies in the U.S. and abroad launched a working group to update their approach to analyzing the effects of pharmaceutical mergers. Initiated by the FTC, the working group will include the Canadian Competition Bureau, the European Commission Directorate General for Competition, the U.K.’s Competition and Markets Authority, the U.S. Department of Justice Antitrust Division, and Offices of several State Attorneys General. The goal of this initiative is to identify concrete and actionable steps to review and update the analysis of pharmaceutical mergers.
The FTC has entered into a settlement that permanently bans an alleged work-from-home scammer from selling or promoting business opportunities and from using robocalls. The FTC alleged that the scammer and a number of companies he controlled initiated millions of robocalls nationwide to promote sham work-from-home business opportunities, focusing on consumers concerned about working outside their homes because of the coronavirus pandemic. The defendants are alleged to have lured consumers into purchasing these programs with false promises that consumers could earn hundreds of dollars a day. They also allegedly falsely claimed affiliation with Amazon.com.
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Two companies, BASF SE and DIEM Labs, will pay a total of more than $416,000 to settle FTC charges that they deceptively marketed two dietary fish oil supplements as clinically proven to reduce liver fat in adults and children with non-alcoholic fatty liver disease (NAFLD). The proposed settlement provides for consumer redress and bars the companies and related respondents from such misleading advertising and requires them to have competent scientific evidence to support any health claims they make for supplements and other products.
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A company and its CEO have agreed to settle FTC charges that they sold hundreds of thousands of indoor TV antennas and signal amplifiers to consumers using deceptive claims that the products would let users cancel their cable service and still receive all of their favorite channels for free. According to the FTC’s complaint, Wellco, Inc. and its owner and CEO violated the FTC Act by making deceptive performance claims for their over-the-air television antennas and related signal amplifiers, using deceptive consumer endorsements, and misrepresenting some of their web pages as objective news reports about the antennas. The proposed consent order would prohibit the defendants from making the deceptive claims and impose a monetary judgment, partially suspended based on defendants inability to pay the full amount.
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Acting FTC Chairwoman Slaughter created a new rulemaking group within the FTC’s Office of the General Counsel. The new structure will allow the FTC to take a strategic and harmonized approach to rulemaking across its different authorities and mission areas. With this new group in place, the FTC is poised to strengthen existing rules and to undertake new rulemakings to prohibit unfair or deceptive practices and unfair methods of competition.
The FTC is seeking comment on topics related to the use of digital “dark patterns,” a range of potentially deceptive or unfair user interface designs used on websites and mobile apps, that will be discussed at the agency’s April 29 workshop. More information about the request for comments and how to submit a comment, including topics and an agenda, can be found here. Comments are due May 29 and will be posted to Regulations.gov.
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