Earlier this month, President Biden announced the formation of a “Strike Force Against Unfair and Illegal Pricing.” The strike force will be an interagency group co-chaired by the FTC and the Department of Justice. President Biden said the group will provide “prescription drugs, health care, food and groceries, housing, [and] Financial operations. The exact composition of the strike force is unclear, but it will reportedly be co-chaired by FTC Chair Lina Khan and Assistant Attorney General Jonathan Canter of the Justice Department's Antitrust Division.
The group was created in response to aggressive antitrust enforcement efforts by the FTC and the Department of Justice. In March 2022, the Department of Justice announced that it would reconsider criminal prosecution for violations of Section 2 of the Sherman Act. This reflected a break in longstanding Justice Department practice. For decades, the federal government prosecuted the crime itself under Section 1 of the Sherman Act, but did not prosecute. criminal In September 2022, the Department of Justice followed through on its word by filing and settling the first criminal complaint under Article 2 in nearly 50 years.
Meanwhile, the FTC is also stepping up antitrust enforcement. In November 2022, the agency issued a policy statement expanding its interpretation of “unfair methods of competition” under Section 5 of the Federal Trade Commission Act. Earlier this year, the FTC offered a glimpse of what this expanded interpretation would look like in practice.
The prescription drug and health care industries, specifically named in the president's latest announcement, have recently come under particular scrutiny by the FTC. In February, the agency, in cooperation with the Department of Health and Human Services, began a public comment period on a proposed rule to address market concentration among prescription drug wholesalers. The strike force announcement marks the second time in as many months that the pharmaceutical industry has become a clear focus of government antitrust enforcement efforts.
President Biden's new strike force is another facet of the administration's scrutiny of pricing practices. This indicates that the government is willing to expand interagency enforcement against companies in a variety of industries, beyond the FTC and Justice Department efforts outlined above. Details of the strike force's composition and mission are currently limited, but its announcement in conjunction with the president's State of the Union address should garner attention from businesses and businesspeople. Companies in the designated industries should take particular care to review their practices and ensure strict compliance with antitrust and competition laws. Practitioners should also bear in mind the government's continued focus on anti-competitive conduct when advising clients.
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