Senior Vice President, International Regulatory Affairs & Antitrust, U.S. Chamber of Commerce
January 18, 2024
As noted in this year's State of American Business address, free enterprise is under threat—jeopardizing competition and economic growth. This was evident in 2023, which was anything but a tame year for both competition and consumer protection policy. Now, 2024 is shaping up to be an eventful one as well—complete with new faces, major court decisions, and lots of regulations—in this space. Here's a breakdown of what we can expect from across the government.
The White House
Will election year politics influence the White House’s approach? During the past three years, the White House has elevated competition policy to the national forefront, with a sprawling Executive Order on Competition and regular efforts to blame inflation on so-called corporate consolidation (a demonstrably false claim). If the White House doubles down on this messaging, we could see harsher anti-business rhetoric and efforts to tie enforcement actions and regulatory proposals to the President’s re-election efforts.
Alternately, and perhaps hopefully, we could see the White House delay some onerous regulatory proposals out of concern that they might play into a broader regulatory overreach message.
Significant legislation seems unlikely to pass in a presidential election year. Instead, we expect Congress to focus heavily on oversight of the administration. Three major committees in the House are investigating the FTC. Ties between the DOJ/FTC and the USTR are expanding their investigations and drawing in other committee interest. Much of this interest builds on the Chamber’s effort to hold the agencies accountable through FOIA requests, recusal petitions, and education outreach to the Hill.
At the same time, however, Senator Warren and other members continue to push the administration to take very aggressive progressive approaches on both law enforcement and regulations.
Congressional riders may become increasingly in vogue, driven by pressure to shrink government spending and growing concern over how the DOJ and FTC are using their resources. A growing number of members have expressed support for using riders to forbid the administration from expending resources on some of the more extreme proposals.
We do not expect leadership changes at either the FTC or DOJ. FTC Chair Khan, for instance, has stated publicly that she expects to finish out her term.
We do expect, however, that the Senate will confirm the two Republican nominees to the FTC—state solicitor generals Andrew Ferguson and Melissa Holyoak—and also reconfirm Commissioner Rebecca Slaughter to a full term.
We would not expect that the addition of two Republican commissioners to halt the FTC’s agenda, but we should see more transparency around the decision-making process as well as meaningful criticism of FTC overreach.
Regulations and Guidance
We expect that the FTC will issue final rules on several topics—all of which are likely to track closely to the proposed initial language, though perhaps with some moderating tweaks:
- Noncompetes: a rule banning most new noncompete agreements and invalidating existing ones;
- Mergers: a rule implementing the FTC’s proposed onerous new HSR form and reporting requirements;
- So-called “Click to Cancel” and “Junk Fee” rules: rules redefining unfair and deceptive acts and practices related to subscriptions and price disclosures?
With the clock ticking on this term, it is unlikely that any agency could complete a fulsome rulemaking process for any regulations that are not already well underway without putting such rules in greater legal jeopardy.
We can expect significant court decisions in several cases involving vertical mergers, joint ventures, and conduct investigations, in industries ranging from airlines and healthcare to tech.
Moreover, both the DOJ and the FTC have signaled an interest to push the bounds of antitrust law even further. For instance, DOJ continues to discuss the possibility of bringing criminal charges under Section 2 of the Sherman Act, and the FTC recently brought a sprawling lawsuit in federal court that raises several “standalone” counts under Section 5 of the Federal Trade Commission Act, which prohibits unfair methods of competition. The latter suit should provide one of the first judicial tests of the FTC’s expansive new Section 5 Policy Statement.
In the States
Several states could seek to ban or severely limit the use of noncompete clauses, require state-level premerger notifications for certain types of mergers—such as in the healthcare sector—and import broad “abuse of dominance” concepts into their antitrust laws.
States also are heavily active in the consumer protection space, proposing legislation to tackle so-called “junk fees”, to mandate easy cancellation procedures, and to ban fake reviews. Additionally, states continue to actively pursue privacy and data security legislation, including rules that address AI and children’s online safety.
With no shortage of significant, groundbreaking issues ahead, the Chamber will continue to advocate for a policy and regulatory environment that benefits both consumers and businesses.