Global Antitrust in 2024: 10 key themes

Growing focus on consumer protection and online choice architecture

In line with the global rise of populist movements, the Biden administration’s Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division have increasingly been moving away from focusing on consumer welfare toward enforcement against a broader range of harms. This expansion has been far-reaching, with the agencies having focused on commercial practices across a wide variety of sectors. Particularly notable, for example, has been the FTC’s stated expansion of Section 5 of the FTC Act – a broad prohibition against “unfair methods of competition” – which the FTC has said will be used to “focus on stopping unfair methods of competition in their incipiency based on their tendency to harm competitive concerns”. The FTC has prioritized the pharmaceutical sector, an area it perceives as having widespread consumer harms, issuing a September 2023 policy statement announcing “improper” patent listings may be challenged under the prohibition, and then accusing 10 major companies of doing so in relation to over 100 listed patents. The FTC’s revived use of the Robinson-Patman Act, a Depression-era law banning price discrimination, has also targeted the pharmaceutical industry, probing rebates or fees in exchange for allegedly excluding lower-cost drugs. Beyond pharma, the FTC has since launched Robinson-Patman Act investigations into pricing practices in the wine and spirits and soft drinks industries in its efforts to protect small businesses.

In parallel, the FTC has pursued both wide-ranging consumer protection investigations into “dark patterns” in the tech space used to “trick or manipulate consumers into buying products or services” and a ban on hidden and bogus fees. That approach mirrors the one being adopted across Europe. In the UK, for example, the Digital Regulation Cooperation Forum – an association of the UK’s competition, privacy and telecoms regulators established to enhance cross-disciplinary cooperation – issued guidance in August 2023 to companies on its expectations regarding online choice architecture, similar to those published by the Dutch Consumer and Markets Authority (ACM). The UK’s Competition and Markets Authority (CMA) has also bolstered its enforcement efforts in this space, including via recent enforcement action against an online retailer for its alleged use of misleading urgency claims, and shown a desire to focus on rolling subscription contracts and fake reviews in new powers proposed in the Digital Markets, Competition and Consumers Bill (DMCC Bill).

More broadly, the UK government’s November 2023 “strategic steer” to the CMA requested that outcomes for consumers be central to the CMA’s enforcement prioritization. Similarly, the European Commission (EC) has emphasized its focus on the effective enforcement of consumer rights and the protection of vulnerable consumers, including in the enforcement of existing antitrust laws. This is reflected in practice, with several antitrust investigations across Europe (including by the EC, the CMA and the ACM) having sought to frame themselves as targeting “exploitative unfair trading condition abuses”.

New and pending reforms to further bolster consumer protection enforcement

2024 looks set to deliver an even greater lease of life to consumer protection enforcement, with new and pending consumer protection-focused powers.

In addition to the growing focus on consumer protection issues in antitrust enforcement cases, businesses should expect an additional wave of separate consumer law enforcement powers as authorities seek to acquire direct and strengthened powers to enforce consumer law akin to their competition law enforcement powers and processes. For example, under the DMCC Bill, the CMA is seeking additional powers to investigate and enforce consumer law and to directly impose fines of up to 10 percent of worldwide turnover without needing to prove an infringement in court.

These proposals sit alongside:

• the newly in force EU Digital Markets Act (DMA) and EU Digital Services Act (DSA) which also focus on expanding consumer choice;
• the strengthened tools of the German Federal Cartel Office, including to carry out sector wide inquiries looking at competition and consumer protection issues (other authorities, such as the Italian Competition Authority, are being promised similar powers, while still others, such as the Spanish Competition Authority, have publicly called for such powers); and
• the widening activity by authorities with dual competition and consumer protection powers, including the Australian Competition and Consumer Commission and the ACM. A clear indication of this being the ACM’s focus on greenwashing practices, including intensified consumer protection enforcement against misleading green claims by manufacturers and e-commerce operators.

Businesses therefore need to be joined up across antitrust, consumer and privacy regulation, as well as across jurisdictions, to navigate these overlapping regimes.

Private enforcement action also set to continue to have a strong consumer-focused agenda

The thriving environment for mass claims, in particular in the UK, has increasingly driven prospective class representatives to pursue collective actions with a consumer-focused agenda. Applications for collective proceedings orders filed in the UK in 2023 continue to include major opt-out claims brought on behalf of large classes of UK consumers involving “abuse of dominance” antitrust claims that have a strong focus on consumer devices, consumer choice and transparency.

Although the UK Competition Appeal Tribunal requires proposed class representatives to demonstrate, for example, that they have an arguable claim, including a credible methodology for establishing any class wide losses, it has been willing to grant repeated “bites at the cherry” to achieve this and to stretch the definition of what may constitute an “antitrust claim”. This invigoration of the claimant bar in the UK runs alongside the lively mass claim activity in the US, where consumer-focused theories of harm are regularly invoked, and elsewhere in Europe (for example Portugal), where there is also an increased prevalence of (threatened) mass claim actions spearheaded by consumer associations invoking direct consumer harm.  

Businesses should be wary that the private enforcement landscape will continue to mirror the pro-consumer public enforcement agenda closely.