President-elect Donald Trump's selection last week of Andrew Ferguson to head the Federal Trade Commission could set the stage for a more hands-off approach to regulation and consumer protection, while maintaining the agency’s opposition to Big Tech's consolidation.
Ferguson, who has served as an FTC commissioner since March, has been vocal on a number of issues, advocating for stronger enforcement actions against pharmacy benefit managers, citing their impact on drug prices, while opposing a ban on noncompete agreements.
Related: UnitedHealth, CVS, Cigna PBMs sue FTC over insulin case
He outlined plans to reverse current Chair Lina Khan’s “anti-business agenda,” according to a copy of his pitch for FTC chair obtained by Punchbowl News. Despite speaking out against Big Tech consolidation specifically, Ferguson said he intended to be favorable to mergers and the repeal of regulation, according to the pitch.
He also said in his pitch he plans to investigate doctors, therapists, hospitals and others who support puberty blockers, hormone replacement and sex-change surgeries on children and adult. Ferguson did not elaborate on what he said he considers “strong evidence that such interventions are not helpful and carry enormous risk.”
Commissioners Alvaro M. Bedoya and Rebecca Kelly Slaughter wrote a letter to Ferguson in response to the pitch that Bedoya posted to his X account, expressing concern that it did not mention the cost of healthcare and prescriptions or fraud.
Ferguson has made his positions known in four key areas that affect healthcare.
Ferguson opposed withdrawal of collaboration guidelines
The FTC and Justice Department withdrew the 2000 Antitrust Guidelines for Collaborations Among Competitors Wednesday, indicating it no longer provides reliable guidance. The agencies said the guidelines rely on outdated and withdrawn policy statements and could result in misleading protections not supported by federal antitrust laws.
The agencies said they will instead look at each case individually to ensure it does not harm competition. If businesses are considering collaborating with competitors, the agencies suggested they carefully review the relevant statutes and case law to ensure they are not violating the law.
Ferguson opposed the withdrawal on the grounds that it took place 40 days before Trump takes office. He wrote in his dissent that the agency should occasionally update its guidelines to clearly reflect its enforcement approach, but he did not believe the timing was correct.
“The time for the Biden-Harris Commission to conduct such guidance review is over,” he wrote. “Last month, the American people elected a new President. Now is the time to facilitate an orderly transition, not to withdraw existing guidance or to push through revised or new guidance.”
He supported stronger enforcement of PBMs
In July, the FTC published an interim report that found six of the largest PBMs handle almost 95% of prescriptions filled in the U.S. A vertically integrated and concentrated market structure allows PBMs to “profit at the expense of patients and independent pharmacists,” the report said.
Khan said the agency will be vigilant in scrutinizing dominant players. Ferguson supported the release of the report, but criticized its reliance on public comments, especially anonymous ones, and its use of only two case-study drugs.
He cautioned in a concurring statement that before issuing a final report, the agency needs to determine if the case-study findings reflect the market dynamics for other drugs and whether any reimbursement practices affect customers’ out-of-pocket costs.
“Prescription-drug prices have risen higher and higher, with list prices on average outstripping even the runaway inflation of the last few years,” he wrote. “We need to understand whether any anticompetitive or unfair or deceptive acts or practices on the part of PBMs or any other market participants are contributing to these prices.”
He also said the agency should take stronger enforcement actions against PBMs, given that some have not complied with the FTC’s 2022 order to turn over documents and information on how their business practices affect competition.
He disagreed with the ban on noncompete agreements
The FTC finalized a nationwide rule banning noncompete clauses in April. Ferguson dissented, arguing the agency didn't have the constitutional authority to issue such a broad regulation.
“Whenever we undertake to make rules governing the private conduct of hundreds of millions of people who do not vote for us, we should not begin with determining what the right answer to the policy question is,” he wrote. “Rather, we must first assure ourselves of the power to answer the question at all.”
In an interview with Mercatus Center at George Mason University in June, Ferguson said he does not see himself as a policymaker. Instead, he said Congress is responsible for making policy and he is responsible for enforcing it.
He disapproved of Health Breach Notification Rule updates
The FTC in April finalized updates to the Health Breach Notification Rule, which provides better protection to consumers’ sensitive health data at a time of rising popularity of health apps and connected devices.
The rule requires vendors of personal health records not covered by federal law restricting release of medical information to notify individuals, the FTC and, in certain instances, the media, of a data breach.
In a joint statement, Ferguson and Commissioner Melissa Holyoak disagreed, saying the updates put companies at risk of “perpetual non-compliance” and opens the agency to lawsuits that could affect its credibility.
“I agree with the majority’s goals — safeguarding consumers’ sensitive health information and implementing a Congressional mandate to put consumers on notice of the breach of that data — but I believe that we must effectuate those goals within the scope of the law as it is, rather than legislating in the guise of applying the law,” they wrote.