Trade Regulation Tidbits

This posting was written by the editorial staff of the CCH Trade Regulation Reporter.

News, updates, and observations:

 House Judiciary Committee Ranking Member John Conyers, Jr. (D, Mich.) and Congressman Ed Markey (D, Mass.), a senior member of the Energy and Commerce Committee and former chairman of the Communications, Technology and the Internet Subcommittee, held a press conference on June 1 to raise antitrust and public interest concerns surrounding the proposed merger of AT&T and T-Mobile wireless telecommunication companies.

“It is time for the Department to exercise its power and look closely at this national, horizontal merger,” said Rep. Conyers. “The AT&T–T-Mobile deal is like a telecommunications time machine that would send consumers back to a bygone era of high prices and limited choice,” Congressman Markey said. “AT&T and Verizon have divided the nation into Bell East and Bell West. Approving consolidation of the number of nationwide carriers from 4 to 3 and then inevitably to 2 would return consumers to a duopoly in the national wireless market.”

 Rep. Ron Paul (R, Texas) recently introduced two bills that would make it easier for dietary supplement marketers to make health claims for their products.

The proposed Freedom of Health Speech Act (H.R. 2045) would require the FTC to prove health claims false before censoring them. Under the measure, the FTC would be prohibited from commencing an investigation into false advertising by an advertiser of dietary supplements unless it possesses before the commencement of such investigation clear and convincing evidence that the advertisement is false and misleading. In a false advertising action against a dietary supplement advertiser, the burden of proof would be on the FTC “to establish by clear and convincing evidence that the advertisement is false, that the advertisement actually caused consumers to be misled into believing to be true that which is false, and that but for the false advertising content the consumer would not have made the purchase at the price paid.” With respect to claimed health benefits for a dietary supplement, the FTC would be required to “additionally establish based on expert scientific opinion and published peer-reviewed scientific evidence that the claim is false.”

The proposed “Health Freedom Act” (H.R. 2044) would revoke Food and Drug Administration rules prohibiting nutrient-disease relationship claims. It would also prohibit the federal government from prohibiting claims that a dietary supplement mitigates, treats, or prevents a disease or condition, unless the claim has been proven false following a trial on the merits. Both measures were introduced on May 26.

 The FTC on June 6 released the agenda for a public workshop addressing legal and policy issues surrounding the inclusion of patented technology in collaboratively set industry standards. The workshop will be held on June 21 at the FTC’s Conference Center at 601 New Jersey Avenue, NW, Washington, DC. Commissioner Edith Ramirez will provide opening remarks and Bureau of Economics Director Joseph Farrell will offer closing remarks. Industry experts will participate in roundtable discussions of the following key issues: disclosure of patent rights prior to adoption of a standard; disclosure or negotiation of licensing terms for patents prior to adoption of a standard; and licensing strategies following implementation of a standard, including the significance of commitments to license patents on RAND terms.

There will also be a presentation on standard setting organization experiences with ex ante disclosure of licensing terms by Professor Jorge Contreras. Additional information is available here on the FTC website.