All of this raises the question: What does it all mean? In each of the past three administrations, over two hundred executive orders were issued. Some compelled "direct" action, as in the case of some of the travel ban orders during the early months of the pandemic. Others fall almost within the nature of aspirational goals, often signaling where the administration’s priorities are.
Procurement and other impactful federal processes
Biden's executive order appears, in parts, to offer more than mere goals — and yet on the whole it seems a bit of a hybrid between goals and directives. The order encourages the FTC to undertake certain areas of review — though it seems to recognize that the FTC is an independent agency, which may establish its own priorities. Still, with the recent appointment of former House subcommittee antitrust counsel Lina Khan to the FTC, it seems likely that certain of the FTC commissioners will be paying close attention to the order's recommendations.
Depending on the industry and the competition issue, the executive order ranges from broad requests to very specific mandates. There are specific "dos and don’ts" in portions of the order that could impact sellers and servicers of governmental clients. The order’s language includes a requirement that the agencies pay particular attention to the potential for their procurement or other spending practices to improve the competitiveness of small businesses and businesses with fair labor practices. The executive order also asks the attorney general and the secretary of commerce to consider revising their positions on certain IP matters, such as patents.
In light of the breadth of this document, we will have to wait and see whether the establishment of the White House Competition Council and the various directives to the various federal agencies will bring greater competition to the medical device repair market.
It is interesting to observe that the
2021 FTC report on repair restrictions, the
2021 draft guidance on remanufacturing and now the 2021 White House executive order on competition all address, in some manner, repair concerns.
Is this coincidence, or is there a somewhat unified message coming through that the current status of repair restrictions will not be supported in the future?
About the author: Robert J. Kerwin is the general counsel for the International Association of Medical Equipment Remarketers and Servicers (IAMERS).Back to HCB News
Wayne Webster
A good step forward
July 15, 2021 02:56
The executive order from the President is a good step forward for resolving the OEM monopolistic practices within the medical device market. Let's all hope this executive order and any actions taken by the FTC to resolve the repair issues encourage some to return to the table and find solutions prior to solutions being imposed on them by the Feds.
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