Biden’s Recent Executive Order on Competition

What is it? How does it relate to you? Everything you need to know about President Biden’s July 9th Executive Order and how to share your story with policymakers. 

On July 9, 2021 President Biden issued the Executive Order on Promoting Competition in the American Economy, which marked a significant turning point in the government’s recent approach to monopolies and antitrust issues. For more than 40 years, policymakers on both sides of the aisle turned a blind eye to consolidation within industries, but Biden’s Executive Order signalled a desire (and a concrete plan) to combat the rising power of dominant firms and barriers to fair markets. The Order’s Fact Sheet is available here. 

So what does the Executive Order do? 

  • Recognizes the wide-sweeping problem of consolidation across industries in the United States, and its knock-on effects: higher consumer prices, lower worker’s wages, lack of economic growth, lower business formation, and less innovation.
  • Acknowledges the national scope of concentrated economic power (it’s not just tech — it affects numerous industries and regions) and calls for a ‘whole of government’ approach to tackling concentrated industries. 
  • Establishes a new White House Competition Council, led by the Assistant to the President for Economic Policy (Tim Wu) and Director of the National Economic Council (Brian Deese), who will Chair the Council.  We wrote about the need for this kind of structural approach to competition issues in our report, The Courage to Learn.
    • The Competition Council will also include the Secretary of the Treasury (Janet Yellen), the Secretary of Defense (Lloyd J. Austin III), the Attorney General (Merrick Garland), the Secretary of Agriculture (Thomas Vilsack) , the Secretary of Commerce (Gina Raimondo), the Secretary of Labor (Martin Walsh), the Secretary of Health and Human Services (Xavier Becerra), the Secretary of Transportation (Pete Buttigieg), the Administrator of the Office of Information and Regulatory Affairs (Neomi Rao), the Chairman of the U.S. Securities and Exchange Commission (Gary Gensler) and other department heads as requested.
  • Catalyzes 72 initiatives by more than a dozen federal agencies, including reporting back on competition issues in their industry and other tactical directives like tasking HHS to present a plan to combat high prescription drug prices and price gouging in the pharmaceutical industry.
  • Calls on the Department of Justice (DOJ) and Federal Trade Commission (FTC), to enforce antitrust laws vigorously and potentially challenge prior bad mergers that were approved under previous administrations.
  • Focuses, in particular, on agricultural markets, healthcare markets (including prescription drugs, hospital consolidation, and insurance), the tech sector, and on labor markets and issues which limit the rights or freedom of workers.
  • States that America’s geopolitical policy stance regarding foreign monopolies and cartels is “not the tolerance of domestic monopolization, but rather the promotion of competition and innovation by firms small and large, at home and worldwide.”

How does it relate to your business? And what can you do to ensure its success? 

  • Now, and in coming months, various federal departments will be asking for public comment and input as they compile reports and weigh policy decisions. You can have a direct impact on the future of policy, and it is important that smaller and medium-sized businesses are heard over monopolist lobbyists. 
  • Access to Markets is doing three things to help businesses ensure markets are fair in alignment with the Executive Order directives: 
    1. Tracking the Order, departmental deadlines, and the opportunities for our partners and network members to provide input through public comment periods or public hearings. We are actively sharing relevant opportunities with entrepreneurs and industry associations in our networks.
    2. Identifying opportunities for businesses and entrepreneurs who have been harmed by market gatekeepers to communicate with lawmakers and policymakers.
    3. Conducting research and compiling stories of entrepreneurs facing anticompetitive tactics (like coercive contract terms) by market gatekeepers. We are adding these stories to our website and internal story bank, as well as elevating them to policymakers. (Some entrepreneurs prefer to remain anonymous for fear of retaliation — we respect and uphold their anonymity). 

Current Open Calls for Public Comment

  • FTC Solicitation for Public Comments on Contract Terms that May Harm Competitioncloses September 30, 2021
    • “The Commission has heard from the public about a wide range of terms that may create power asymmetries that disadvantage small businesses, workers, and/or consumers. Concerns have been raised about exclusivity provisions that require small businesses to limit their trade to a single company, non-compete clauses that prevent workers from seeking employment with other firms, and other one-sided contract terms that may exacerbate or lock in power disparities. The Commission encourages members of the public to comment on any issues or concerns they believe are relevant or appropriate to the Commission’s consideration and to submit written data, views, facts, and arguments addressing the topic.”
    • Access to Markets has compiled a list of potentially coercive or unfair contract terms businesses face as vendors, suppliers, or distributors to incumbent businesses. These terms can also affect musicians, artists, and creatives, and are common across diverse industries — from tech to agriculture, retail to manufacturing, and many others.

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