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FTC Competition Priorities

FTC Commissioner Julie Brill discussed the agency’s competition and consumer protection priorities in her keynote address last Thursday at the ABA’s Antitrust Fall Forum at the National Press Club in Washington. Brill led off with an ode to the antitrust ideals of the Progressive Era – with plenty of references to Justice Brandeis – and focused primarily on health care efforts, emphasizing that the FTC and the Affordable Care Act have the same goals of “promoting high quality and cost-effective health care.”

Among the recent health care efforts touted by Brill:

● The FTC is committed to ending “pay-for-delay” patent deals among pharmaceutical manufacturers, particularly after the Supreme Court held in FTC v. Actavis in June 2013 that such deals are subject to antitrust scrutiny.

● In September, the agency sued a number of pharma companies for blocking consumer access to a low-cost version of AbbVie’s testosterone drug, AndroGel. The FTC alleged that AbbVie filed sham lawsuits against generic manufacturers to keep generics off the market and enticed competitors to delay generic competition by awarding them licenses to produce generic equivalents of other AbbVie drugs.

● Last April, the Sixth Circuit affirmed an FTC determination that ProMedica Health System violated antitrust laws when it acquired a rival, St. Luke’s Hospital in Toledo, Ohio.

● The FTC and the Idaho Attorney General won a preliminary injunction in the District of Idaho last January preventing St. Luke’s Health System from acquiring Saltzer Medical Group, which would have “create[d] a firm with nearly 60 percent of the market.”

● Last January, the FTC conditioned Endo Health Solutions’ acquisition of Boca Life Sciences Holdings on the companies’ divestiture of assets. Otherwise, the FTC concluded, the merger would consolidate “two generic markets that did not yet exist,” since the companies were “two of only a few likely future competitors.”

Brill also touted achievements outside the health care area:

● Blue Rhino and AmeriGas, two propane gas distributors, agreed last month to settle FTC charges concerning an alleged scheme to under-fill propane tanks sold to Walmart.

● Last June, the FTC conditioned glass bottle manufacturer Ardagh Group’s acquisition of rival Saint-Gobain on Ardagh’s divestment of six of its nine manufacturing plants.

 ● In January, the FTC affirmed in part and reversed in part an initial decision by an ALJ finding that the pipe manufacturer McWane unlawfully maintained a monopoly in the market for ductile iron pipefittings used in municipal and regional water systems.

● The FTC in September 2013 conditioned a proposed Nielsen/Arbitron merger on the companies’ divestiture of assets to ensure competition.

Brill’s address is available here.