Executive Order on Promoting Competition in the American Economy

President Biden is expected to sign an executive order today focusing on competition that includes 72 separate initiatives.  The following are a few.

  • Non-Compete Agreements: About half of private-sector businesses require non-compete agreements.  This stifle’s competitions and limits workplace mobility. The FTC is being asked to either ban or significantly limit non-compete agreements.
  • License Requirements: About 1/3 of jobs in the US require some sort of license from a state authority.  These licenses limit mobility and lock folks out of certain jobs.  The FTC is being asked to ban occupational licensing requirements that impede economic mobility.
  • Prescription Drugs: Drug prices are higher in the US than in any other country — even for the identical product.  This is largely a construct of Federal Law.  The FDA is directed to begin importing prescription drugs from Canada (in cooperation with states and tribes); The HHS is directed to support for generic and biosimilars and create a comprehensive plan (within 45 days) to combat high prescription drug prices and price gouging; FTC is asked to ban “pay for delay” agreements between patent owners and generic competitors.
  • Right to Repair: The FTC is encouraged to “limit powerful equipment manufacturers from restricting people’s ability to use independent repair shops or do DIY repairs.” This is particularly focused on farmers, but will likely extend to other areas.
  • Hearing Aids: Sell these over the counter.
  • Hospitals: Complete implementation of hospital price transparency rules. Recognize that hospital mergers are usually not good for patients.
  • Obamacare: Do a post-Trump revamp of the National Health Insurance Marketplace to standardize plans and make it much easier for consumers to understand and comparison shop.
  • Internet: Restore net neutrality rules; limit early termination fees for home internet; require more transparency in pricing; limit private deals between ISPs and landlords that limit tenant access to competition and benefit the landlord.
  • Internet Mergers: Apply greater scrutiny of mergers, especially by dominant internet platforms.
  • Privacy: The FTC is encouraged to develop rules on surveillance and the accumulation of data by big-tech and to bar unfair competition in internet marketplace.
  • Passenger Train: Encourage 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.

More to come on this topic.  Note, the statement does not mention patent rights or intellectual property, but several of the orders have IP implications.

https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/

 

55 thoughts on “Executive Order on Promoting Competition in the American Economy

  1. 14

    Could the right to repair . . . apply to the eligibility jurisimprudence of SCOTUS and the CAFC?

    Pretty please.

    With sugar on top.

    1. 14.1

      You’ve already got a right to repair eligibility. You just don’t have enough political capital to get the votes needed for repair!

      1. 14.1.1

        Ha! Not today I don’t. But . . .

        1. 14.1.1.1

          Do you really think the pro-patent lobby’s strength is waxing?

          1. 14.1.1.1.1

            Wax on…
            Wax off…

  2. 13

    Being myself a long-time user of hearing aids, my attention was attracted to that agenda item.

    Anecdotal evidence is that hearing loss often leads to social withdrawal and then depression. The public can appreciate the consequences of a loss of vision but cannot imagine what it is like to suffer from progressive hearing loss.

    Accordingly, fitting people out with hearing aids is, in a decent society in which there are ever-increasing numbers of seniors, an aim worth pursuing. But:

    The data processing performance of a modern hearing aid is awesome. Every person needs a differently-tuned aid, and the fit in each person’s ear is uniqne. Over the counter sales is a good start but in itself not enough. From my own experience I know that a poorly set-up pair of aids is worse than useless.

    Who sets up the aids, here in Germany? Qualified audiologists, in dedicated hearing aid shops. The chains compete fiercely with each other with respective omni-present TV advertising campaigns. Ever more omni-present. Some chains are better than others.

    And in the USA. What is to be expected when aids come to be sold “over the counter”?

    1. 13.1

      Probably not a great thing to sell hearing aids over-the-counter. But, who knows, maybe low-cost help will assist people to get the right hearing aids.

      I think the problem in the USA is that if you don’t have insurance that hearing aids can be very expensive with huge mark-ups.

      1. 13.1.1

        Given the explosion of sales and competition in Germany, Night, I bet that a switch to OTC sales in the USA will result in plummeting prices in the USA. But, as I wrote, if the individual fitting and tuning is not done by experts, the buyers will be disappointed and will discard their hearing aids in disgust, as being worse than useless.

        The expensive bit is not the aid as such but, rather, its fitting and tuning by a trained specialist.

        Still, who cares, whether the aids are individually tuned and fitted, if the hearing aid sellers turn a nice profit and the government can boast that government action has benefitted millions of Americans.

        1. 13.1.1.1

          Not sure Max. In the USA, things are strange. What happens is that there are different prices for services depending on your insurance. So the hospitals and many doctors charge you more for the same service if you don’t have insurance.

          My guess is that the hearing aid manufacturers are not the ones that are making the money and won’t be the ones that benefit from this.

          As I said, maybe Walmart will train people to do a good enough job for an affordable price so that everyone in the USA can having a hearing aid that needs one.

          Not really sure of all the market dynamics but Germany where I used to live and work is quite different from the USA.

          1. 13.1.1.1.1

            Night Writer,

            You alight upon a far bigger and more pervasive issue for ALL of health care (including Pharma) in the US: clarity and visibility of all costs and profits across the entire spectrum, from manufacturers to prescribers to insurers.

            So many shadows (and games) that at the end of the day line MANY pockets at the expense of US Joe Taxpayer.

          2. 13.1.1.1.2

            Night, you give me grounds for optimism. I guess it is not impossible, that competition for the custom of discriminating customers will result in chains like Wal-Mart delivering to customers hearing aids that are accurately tuned and fitted to the individual needs of individuals who are hard of hearing.

            It is my experience that until you are on your third pair of hearing aids, from three different supplier, you lack the ability to discern whether the hearing aids you have been sold are “fit for purpose”. I fear that there are going to be an awful lot of people soon, that are complaining that their aids are disappointing. My third pair are brilliant. I wonder how i ever tolerated the first pair and the second pair.

            To repeat; it’s not the aids as such that are not fit for purpose. Rather, it is the tuning and fitting that makes all the difference. You know when the spectacles you have been sold are not doing their job. But not with hearing aids until after you have experienced a correctly tuned and fitted set.

            1. 13.1.1.1.2.1

              Thanks for telling us this Max. I’ve never had a problem and did not know this.

              1. 13.1.1.1.2.1.1

                You’re welcome, Night. Many people suffer hearing loss as they get older, if it’s “in the family”. So it is with me. The delicate hairs in the fluid of the inner ear wither away, very slowly, starting at about 50 years old.

                Having had expert therapy and now enjoying state of the art aids, I feel so sad, that my mother and grandmother, while they were alive, did not enjoy the benefits, namely, to be able to enjoy conversation despite the hearing loss.

                Not my grandmother, but for my mother, emailing was a boon, something that she found out about and learned how to do, when she got her first computer and internet connection at the age of 80. You see, when you have hearing loss, telephone conversation is difficult, trending to impossible. People don’t realise how damaging to the psyche a gradual loss of social intercourse can be.

  3. 12

    I have to repeat that the overall tone of the entire Executive Order is very Republican (even Reaganesque).

    How are the Liberal Left (so recently aligned with Big Tech) feeling?

    1. 12.1

      Shall we take that sullen silence as indicative?

  4. 11

    Break up AT&T.

    Again.

    And this time make it stick.

    (Actually the company that now calls itself AT&T is the old Southwest Bell.)

    1. 11.1

      They payin good dividends bro, why break em up?

      1. 11.1.1

        The dividends would go up even higher if the Government would privatize the Patent Office and sell it to AT&T.

        AT&T would greatly increase the costs to the applicants.

        There would be many fewer applicants.

        AT&T would lay off many patent examiners, especially the old ones.

        Examiner 6, can you live comfortably just off your AT&T dividends?

        1. 11.1.1.1

          “Examiner 6, can you live comfortably just off your AT&T dividends?”

          Not if I can’t use my retirement 401k funds. But if I can use my retirement 401k funds then yeah I could live my same lifestyle till I die most likely ez. Obv esp ez if I either cut women out or get a side gig, as I presume you would in this scenario be denying me the ability to simply work in my field or otherwise seek patent related work.

          But that aside, that’s all hyperbole, ATT isn’t that much of a monopoly. They had lots of competition that just couldn’t cut the mustard (i literally tried many of their competitors through the years and eventually settled with them). And in some regions they still have plenty of competition.

  5. 9

    The non-compete agreement one conflicts with Chien’s (backed by Biden) of making Trade Secret Law much stronger. Trade Secret Law limits mobility and can be crippling for employees. Chien should be forced to comment on this (or terminated.)

    >>Non-Compete Agreements: About half of private-sector businesses require non-compete agreements. This stifle’s competitions and limits workplace mobility. The FTC is being asked to either ban or significantly limit non-compete agreements.

    1. 9.1

      Most of this looks pretty good. I’ve thought about how limiting state licenses are when they are all about the same for things like electricians, plumbers, doctors, and so forth.

    2. 9.2

      Much of the focus on the progressive left on non-compete agreements has been on employers having low wage workers sign them as part of their orientation., in jobs where there is not reason to have a non-compete except for labor control. I hope that this leads to a tightening in general of the application non-compete agreements in general.

      1. 9.2.1

        >>I hope that this leads to a tightening in general of the application non-compete agreements in general.

        For once Ordinary and I agree.

      2. 9.2.2

        But Ordinary, let’s remember that SV has admitted to illegally conspiring to lower the salaries of their employees and that Chien is working hard to get stronger Trade Secret Protection, which will have the effect of lowering the salaries of the tech workers.

        1. 9.2.2.1

          And they should roast for that. As much as I can be a skeptic about patent maximalism, SV does not get any love from me.

  6. 8

    “Right to Repair: The FTC is encouraged to “limit powerful equipment manufacturers from restricting people’s ability to use independent repair shops or do DIY repairs.” This is particularly focused on farmers, but will likely extend to other areas.”

    That one is a long time coming. The whole “if you try to repair it then that voids the warrenty” trick also needs revamping so that it’s only if you try to repair it and destroy it or super damage it then the warranty is voided. About a thousand other issues in this realm as well as the dude that is online making vids about his laptop repair/board repair/phone repair shop is all the time talking about.

    1. 8.1

      Right to Repair means a lot of things to different people. Personally, I am fine with third party service voiding warranties. To me, right of repair means availability of documentation and replacement parts.

      1. 8.1.1

        It means much more in regards to software control (including mere access)

  7. 7

    A lot of those sound nice but I’m not sure it’s in the FTC etc.’s authority to just blanket ban them if states want to allow them.

    1. 7.1

      +1

  8. 6

    “The FTC is being asked to ban occupational licensing requirements that impede economic mobility.”

    What a strange way to frame it. If we’re optimizing for economic mobility, we probably need to get rid of medical licenses.

    “require railroad track owners to provide rights of way to passenger rail”

    I was under the impression we had the best rail freight system in the world. Are we looking to trade that for a mediocre rail freight system and a still crummy passenger rail system? Amtrack takes 66 hours to go from Los Angeles to Chicago. If this were to cut that down by 18 hours it wouldn’t make a difference.

    1. 6.1

      I was under the impression we had the best rail freight system in the world. Are we looking to trade that for a mediocre rail freight system and a still crummy passenger rail system?

      For better or worse, the answer appears to be “yes.” Pres. Biden loves too well but not too wisely when it comes to Amtrak.

  9. 5

    One sort of global observation here is that several of the items listed above (licensure requirements, non-competes, skepticism of internet mergers) borrow the best thinking from Republicans or Libertarians. This rather suggests that paranoid 2020 claims that “Sleepy” Joe would be AOC’s cats paw were off base..

    1. 5.1

      Those claims were not products of the available evidence at the time, so I suspect additional contrary evidence will not cause many opinions to be updated.

      1. 5.1.1

        I suspect that you are correct.

      2. 5.1.2

        AOC herself is a far, far cry from the second coming of Lenin. Ain’t been a real leftist around these parts for decades.

        1. 5.1.2.1

          Well Marty, you might be correct – but for reasoning that you also might not be aware of.

          (this has to do with the philosophical shift away from “real leftists” after the large scale real world political failures, as is known in the world of Neo-Liberalism)

    2. 5.2

      Notwithstanding that I also noted this parallel in Ends – there may well still be a significant difference in Means employed to reach those Ends (details of which are yet to be determined).

    3. 5.3

      There are several causes where the libertarian right and the progressive left agree, at least in principle, that there needs to be reform.

      1. 5.3.1

        Sure, and isn’t it a pleasant surprise when the two sides simply take action on those points of mutual agreement, rather than wasting their time fighting to no purpose over points of disagreement?

        1. 5.3.1.1

          As noted, the Means (details) still need to be hashed out, so your “enthusiasm” is more than a bit Polly Anna at this time.

  10. 4

    To this point, “License Requirements: About 1/3 of jobs in the US require some sort of license from a state authority. These licenses limit mobility and lock folks out of certain jobs. The FTC is being asked to ban occupational licensing requirements that impede economic mobility.

    That sounds incredibly Republican (just eliminate any safety drivers for having said license structures in place without even thinking about why those structures are there)

    1. 4.1

      Pretty sure that from what I heard it was leftists critiquing them mostly these days. This being in large part because they impede the victim groups.

      1. 4.1.1

        “Victim groups” have been eating their own.

        And that trend can only accelerate.

    2. 4.2

      At last! The locks are off! Now we all can work in whatever field we want to!

      You want to be a doctor? You’re in! Here’s your scalpel — get to cuttin’!

      How ’bout an attorney? You’re in! Here’s your pen — get to filing lawsuits!

      How ’bout teaching? You’re in! Here’s yer classroom — get to telling students what they need to know!

      Why not all three at the same time?!

      Schooling? Qualifications? Licenses? They’re for suckers!

      Now that’s what I call the land of the free!

    3. 4.3

      There is a large overlap on this issue between the libertarian right and the progressive left. There are many occupational licenses where limiting competition, not safety or ethics are the primary motivations of licensing (where, coincidentally, members of the profession also serve on the licensing board).

      1. 4.3.1

        The legal field VERY much is one of those in which control of labor quantity is strictly controlled by state Bar committees (with a definite interest in controlling ‘supply’ level for direct economic impact).

        Sure, we DO have strict ethical considerations as well, but to depend on that aspect as some reason to control numbers would frankly be dishonest and UNethical.

    4. 4.4

      >That sounds incredibly Republican (just eliminate any safety drivers for
      >having said license structures in place without even thinking about why
      >those structures are there).

      Silly exaggerations (e.g., “this will allow surgeons and nuclear power plants to operate without licenses!”), have been used for decades to resist even modest reforms against irrational occupational licensing requirements. No one is arguing that occupational licensing should be abolished where it’s necessary to protect the public; but there are hundreds of occupational licensing requirements across states and local governments that make zero sense. In Michigan, for example, you need an occupational license to install carpet or wood floors, but not vinyl floors. In that same state, you don’t need a license to install drywall, but if you want to apply a drop of paint to that drywall after you’ve installed it, you need a license. In pretty much every state, you’ll find bizarre inconsistencies and lopsided requirements like that, and they can almost always be traced back to political lobbying by narrow interest groups that sought to raise barriers to competition.

      1. 4.4.1

        While one MIGHT agree that “Silly exaggerations (e.g., “this will allow surgeons and nuclear power plants to operate without licenses!”), have been used for decades to resist even modest reforms”…

        … the point on the table is NOT any such modest reforms and instead IS the broad scale item that SHOULD derail “this reform.”

        Trust me, I am no fan of the “just remove licensing” that appears to be on the table and would welcome those details of any such “modest reform” that you might have in mind, LR.

  11. 3

    Prescription Drugs: Drug prices are higher in the US than in any other country — even for the identical product… The FDA is directed to begin importing prescription drugs from Canada (in cooperation with states and tribes)…

    This could be very big, or it could be a nothing-burger. Canada is only ~10% the size of the U.S., so there is not nearly enough slack capacity in the CA pharma market to supply U.S, demand. Merely importing from CA, therefore, will not move prices in the U.S. all that much.

    On the other hand, implicit in the idea of authorizing importation from CA is the idea that the FDA will treat approval by CA regulators as good enough for US approval. There is no reason in principle why CA regulators should be singled out in this respect. If the Biden administration is willing to treat CA regulatory approval as a substitute for USFDA approval, why not EMA approval? If that sort of regime change were to emerge by executive order, the effect on prices would be huge.

  12. 2

    The text(s) will be interesting…

    >The FDA is directed to begin importing prescription drugs from Canada (in cooperation with states and tribes);

    Directed == willful infringement?

    >Hospitals:

    But maintaining certificates of need?

    >Internet: Restore net neutrality rules

    Restore == not covering FB/Twitter?

    1. 2.1

      “Restore == not covering FB/Twitter”

      Thank you for reminding us that some people heartily support regulating the nuetrality of the content of the pipes, but not the neutrality of pipes themselves. I needed a laugh.

      1. 2.1.1

        Ben, not sure that you recognize the echo you sound in from Trump…

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