Reviving Competition in Healthcare Markets: The Use of Section 5 of the FTC Act

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David Balto, Nov 12, 2008

The Federal Trade Commission’s (“FTC”) powers under Section 5 of the FTC Act are often misperceived, often by the enforcers themselves. Too often in the past, the FTC has perceived itself as the younger sister of the Antitrust Division of the Department of Justice (“DOJ”), measuring its success and activities based on the enforcement agenda and approach of the Antitrust Division. There have been times when the FTC has focused its efforts, like the Antitrust Division, on federal court litigation, and in doing so, has failed to perceive and fully utilize its unique range of statutory and adjudicative powers. To its credit the current FTC has revitalized the administrative litigation process, which under its new proposed litigation rules offers the potential of the Commission becoming the “Times Square” of antitrust litigation in the future. Determining the scope of the Commission’s jurisdictional powers is equally as important. That is why the FTC’s recent self-examination of its powers under Section 5 is vital to effective federal antitrust enforcement…the nature of competition in the general economy increasingly demands that the FTC, like other enforcement agencies, fully utilize their enforcement powers.

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