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FTC Is Split On Use Of Prior Approval Provisions In Merger Orders

By  |  October 31, 2021

The two Republican Commissioners voted no and dissented from approving the Policy Statement, citing concerns about improperly expanding the scope of the HBNR outside of the rulemaking process and depriving the public of the opportunity to comment on agency rulemaking.

In her dissenting statement, Commissioner Christine S. Wilson noted that the Policy Statement contradicts existing FTC business guidance and curtails an open, ongoing rulemaking process that covers the HBNR.

In his dissenting statement, Commissioner Noah Joshua Phillips echoed the same concerns and further noted that the HBNR provides an unworkable “remedy” for notice of a breach in the context of apps and companies that operate based on the sharing of health-related consumer data.

Related: New FTC Policies Restore Prior Approval Policy For Merger

The Commission signaled its intent to bring actions to enforce the HBNR consistent with the Policy Statement. However, there could be meaningful challenges to this purported clarification if the Commission seeks to enforce the HBNR against health-related apps and devices in the future.

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