Principal Deputy Assistant Attorney General Doha Mekki Delivers Remarks at the Morocco Competition Council Conference on Competitive Neutrality and Market Access

Remarks as Prepared for Delivery

Thank you for the privilege of addressing this esteemed conference. At the outset, I want to extend my deepest sympathies to the people of Marrakesh after last year's tragic earthquake. All of us are heartbroken by the immense loss of life and destruction of historical sites. We are nonetheless moved by the resilience of the Moroccan people and stand with you as you build anew.

For the last three years, I have served as the second-highest ranking official at the U.S. Department of Justice's Antitrust Division. It has been the privilege and honor of my life. As a law enforcer, my primary responsibility has been to oversee the investigation and prosecution of violations of U.S. antitrust laws. During my tenure, we have brought enforcement actions to stop illegal domestic airline consolidation, the suppression of competition for workers and the transnational cartelization of car exports. We have focused on the rising cost of healthcare that threatens providers and independent pharmacists. We have focused on America's farmers, who are at the mercy of dominant middlemen, rising input costs for items like seeds and fertilizer and other market conditions that reduce their earnings while raising costs for families at the grocery store. And we have focused on algorithmic collusion that subverts competition in housing markets and makes the necessities of life increasingly unaffordable.

Today, however, I would like to talk about our role as advocates for competition policy across the U.S. government. As we know, competition policy includes the myriad decisions that policymakers across government agencies make and that shape the competitive landscape in which companies operate. Often those government agencies have broad mandates to regulate in the public interest, which includes statutory authority to promote competition. Smart policy can often harness the power of competition to promote market integrity, encourage innovation and investment and deliver value to taxpayers. Government policy that entrenches dominant firms, however, imperils those benefits. And it may imperil the vitality of the underlying markets altogether.

In the United States, we have long been suspicious of concentrations of economic power. In 1788, Thomas Jefferson even advocated for a constitutional demand of "no monopolies of any kind."[1] While no such prohibition made its way into the U.S. Constitution, Americans' wariness of monopolies endured. I would be remiss if I did not point out that Thomas Jefferson later helped negotiate the treaty between the United States and Morocco. It was the first bilateral treaty between the United States and any African country and the beginning of the United States' longest continuous diplomatic relationship.

Concern about monopolies, illegal mergers and corporate collusion is resurgent. In 2021, President Biden issued the Executive Order on Promoting Competition in the American Economy. The Executive Order heralded the importance of competition to the U.S. economy and detailed why a "whole-of-government approach is necessary to address overconcentration, monopolization, and unfair competition in the American economy." It recognized that "Agencies can influence the conditions of competition through their exercise of regulatory authority or through the procurement process."[2] The order recognized that U.S. federal agencies, not just the Antitrust Division and our sister agency, the Federal Trade Commission, play a critical role in shaping competitive markets. The benefits of this government-wide approach to competition accrue to businesses and citizens of all stripes through better prices, higher quality, more innovation, and more investment. Along with the Executive Order, the President created an interagency committee of the leaders of government agencies called the White House Competition Council, which promotes better federal policy to address illegal concentration, monopolization and unfair competition.

One way that federal agencies can promote competition is in their role as sectoral regulators. Federal agencies can adopt, amend or remove regulations to increase competition by, for example, reducing entry barriers, creating access to markets, removing incumbency advantages and lowering compliance costs, benefiting participants throughout the market. How agencies regulate can play a significant factor in how competitive the market is.

Let me provide a few examples of how a whole-of-government approach to competition policy can work for the benefit of consumers, workers, businesses and the broader economy.

Hearing Aids. Until recently, Americans could purchase a hearing aid only with a prescription. This regulation limited the introduction of new, affordable technologies to the market and required patients to visit a doctor to adjust their hearing aids. It was expensive and time consuming. A few companies offering outmoded and expensive devices dominated the market. The President's Executive Order directed America's Food and Drug Administration, which is responsible for regulating medical devices, to "to promote the wide availability of low-cost hearing aids," including by allowing hearing-impaired patients to obtain hearing aids without obtaining a prescription from a doctor.[3] In 2022, the FDA promulgated regulations allowing patients to obtain hearing aids without a prescription.[4] Now, patients can obtain much more affordable hearing aids at stores - conveniently and without a prescription. And some phones have introduced hearing aid features. Companies are already busy innovating and producing to meet the demands of this reinvigorated market.

Promoting Access to Patent Services. Much like state bar associations, at the federal level, the U.S. Patent and Trademark Office (USPTO) regulates who can appear before the patent office to pursue or contest patents. To grant admission, the USPTO generally has required a bachelor's, master's or doctorate degree in a select list of scientific or engineering programs or certain equivalent coursework.[5] This rule applied even if patent practitioners were submitting patents for what we call design patents, which protect novel decorative or ornamental features - not technologies or new drugs. That means a person with a degree in microbiology could pursue a design patent, but someone with a degree in industrial arts could not.

That rule changed in 2023, when the USPTO, with the support of the Antitrust Division,[6] created a separate patent bar allowing practitioners with arts degrees to pursue design patents.[7] Now, design patents will be drafted and submitted by people with relevant qualifications in those fields.

Freeing the McFlurry Machine. To repair machines, technicians often need access to the machine's software, which can constitute a violation of a law that protects software called the Digital Millenium Copyright Act. Fortunately, that Act allows the U.S. Copyright Office to issue exemptions. To safeguard farmers' and businesses' right to repair their devices and equipment, the Antitrust Division has supported reasonable exemptions that allow independent technicians to service owners' machines.

To provide a somewhat fluffy example of how this works in practice, the international fast food chain McDonalds sells a frozen treat in the United States called a McFlurry, which uses a machine to pump air into ice cream and mix it with various toppings. When the machines broke down, stores could only obtain repairs from the manufacturer of the machine. The lengthy service disruptions became a frequent gripe for customers and, of course, the butt of some jokes. In 2024, with the support of the Antitrust Division and the Federal Trade Commission,[8] the Copyright Office issued an exemption under the Digital Millenium Copyright Act for the "diagnosis, maintenance, and repair of retail-level commercial food preparation."[9] With this exemption, a new repair industry can develop to satiate customers' sweet tooth.

This regulatory action follows a successful statement of interest we filed in a recent federal case. We supported farmers' right to repair their own John Deere tractors by using independent repair shops. In allowing the case to proceed, the court accepted our position that restrictions on the right to repair can harm competition and consumers.

Other examples of a whole-of-government approach to competition policy abound. Indeed, since the Executive Order, the Antitrust Division has submitted 20 public comments to federal agencies encouraging them to adopt or adapt rulemaking and standards that promote competition. These comments address cross-cutting topics such as labor, banking, digital markets, energy and electricity, patents, consumer products and services, junk fees and much more.

To encourage other government agencies to consider competition issues when promulgating policy, the Antitrust Division has helped train sister agencies about competition and opening markets to free and fair competition, even within existing regulatory frameworks. These trainings have focused on topics from healthcare markets to procurement collusion.

For many countries, this whole-of-government approach to improving competitiveness could create avenues for domestic and foreign investment, stimulate economic growth and achieve real improvements to people's livelihoods.

In closing, I thank you again for the privilege of sharing the U.S. experience with all of you. I hope that it can serve as a useful case study for other countries seeking to expand economy opportunity and prosperity for their citizens.

Thank you.

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