Health Care Antitrust Enforcement Remains a Top Priority for New FTC Commissioners

Taken from Lexology, Anti-Trust Alert
McDermott Will & Emery

May 4, 2018

On April 27, 2018, the United States Senate confirmed President Trump’s five nominees for Commissioners of the Federal Trade Commission (FTC). Three are Republicans: Chairman Joseph Simons, Noah Phillips and Christine Wilson, and two are Democrats: Rohit Chopra and Rebecca Slaughter. The Senate’s vote returns the FTC to a full complement of Commissioners for the first time under the Trump Administration. Of note to participants in the health care sector: the FTC shares civil antitrust law enforcement jurisdiction over the health care industry with the Department of Justice Antitrust Division, but takes the lead when it comes to the health care provider, pharmaceutical and medical device industries.

FTC Antitrust Enforcement in Health Care Will Likely Remain Robust

It is very unlikely that President Trump’s newly confirmed FTC Commissioners will usher in a period of more lax antitrust enforcement at the FTC, including in health care. For example, during a February 14, 2018, Senate confirmation hearing on four of President Trump’s nominees to serve as FTC Commissioners, each of them testified that antitrust enforcement in the health care sector will remain a top priority of the Commission.

  • Chairman, Joseph Simons (R): “Americans are hearing more about antitrust, seeing high health care costs . . . . I am here before you because if confirmed I want to help lead the FTC at this critical time.”
  • Christine Wilson (R): If confirmed, she anticipates “spending a great deal of time and effort” to “ensuring competition in healthcare markets.” Ms. Wilson will not take her seat until the Senate votes on current Chairman Maureen Ohlhausen’s nomination to the US Court of Federal Claims.
  • Noah Phillips (R): The FTC “has a proud, decades-long…record… to keep competition going in healthcare markets, from reviewing mergers of hospitals, to policing prescription drug prices. If confirmed, I look forward to working to make that issue a priority.”
  • Rohit Chopra (D): “It must be a top priority to enforce all the applicable laws” in the health care and pharmaceutical markets. (After this hearing, on March 26, 2018, President Trump nominated Rebecca Slaughter [D] for the remaining Commissioner vacancy.)

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