ADVISORY OPINIONs AT THE FEDERAL TRADE COMMISSION
applicable to Standards setting organizations
(back to Advisory Opinions)
How the FTC process works:
Excerpts from presentation by Judith A. Moreland Attorney Bureau of
Competition Presented at the National Health Lawyers Association
Antitrust in the Health Care Field Washington, D.C. February 13 and 14,
The Commission's Rules are found at 16 C.F.R .§ 1.1
- Availability: "Any person, partnership, or
corporation may request advice from the Commission with respect to a
course of action which the requesting party proposes to
- Commission vs. staff opinions:
- "The Commission will consider such requests for advice
and inform the requesting party of the Commission's views, where
practicable, under the following circumstances: (1) The matter
involves a substantial or novel question of fact or law and
there is no clear Commission or court precedent; or (2) the
subject matter of the request and consequent publication of
Commission advice is of significant interest."
- "The Commission has authorized its staff to consider all
requests for advice, where applicable, in those circumstances in
which a Commission opinion would not be warranted."
- In practice, most advisory opinions are staff letters. The
availability of Commission letters is limited by the rule and by
practical considerations (such as the time limits).
- Hypothetical questions will not be answered.
- A request normally will be considered inappropriate where
"(1) the same or substantially the same course of action is
under investigation or is or has been the subject of a current
proceeding involving the Commission or another governmental
agency, or (2) an informed opinion cannot be made or could be
made only after extensive investigation, clinical study,
testing, or collateral inquiry."
- The identity of the companies or other persons involved should
- Opinions are available with respect to proposed conduct, not
conduct that is ongoing; and it needs to be intended conduct,
not merely possible conduct.
- The proposal needs to be fully enough developed so that we
can evaluate it. Organizational efforts can go forward
without jeopardizing the availability of an opinion, so long
as the specific actions that give rise to the antitrust
issues are not carried out.
- With respect to a network, for example, we expect to see
at least drafts of the organizing documents, participation
agreements, and marketing plans. We would consider the
conduct ongoing if a network had negotiated or executed
contracts with payers, whether or not performance had begun.
In some cases, agreement among the providers as to prices
would be considered ongoing conduct.
- If we see ongoing conduct, we may open an investigation.
See also Prospective
Guidance FTC Advisory Opinions by Jeffrey W
Brennan Assistant Director, Bureau of Competition
June 26, 2002