Senator Elizabeth Warren has long made clear that she’s no fan of Big Tech, and her latest legislation proves it. She and House Representative Mondaire Jones have introduced legislation in their respective congressional chambers that would effectively ban large technology mergers. The Prohibiting Anticompetitive Mergers Act (PAMA) would make it illegal to pursue “prohibited mergers,” including those worth more than $5 billion or which provide market shares beyond 25 percent for employers and 33 percent for sellers.
The bills would also give antitrust regulators more power to halt and review mergers. They would have authority to reject mergers outright, without requiring court orders. They would likewise bar mergers from companies with track records of antitrust violations or other instances of “corporate crime” in the past decade. Officials would have to gauge the impact of these acquisition on labor forces, and wouldn’t be allowed to negotiate with the companies to secure “remedies” for clearing mergers.
Crucially, PAMA would formalize procedures for reviewing past mergers and breaking up “harmful deals” that allegedly hurt competition. The Federal Trade Commission has signalled a willingness to split up tech giants like Meta despite approving mergers years earlier. PAMA might make it easier to unwind those acquisitions and force brands like Instagram and WhatsApp to operate as separate businesses.
The act isn’t strictly focused on tech, but Warren made clear that industry was a target. She cautioned the FTC on Amazon’s proposed buyout of MGM Studios, and challenged Lockheed Martin’s since-abandoned attempt to buy Aerojet Rocketdyne.
If it becomes law, PAMA would ban the Amazon-MGM union (worth over $8.4 billion), Microsoft’s Activision deal ($68.7 billion) and relatively modest acquisitions like Google’s planned buyout of Mandiant ($5.4 billion). Tech firms would largely have to focus on acquiring ‘small’ companies, and would largely have to forego deals meant to expand market share or otherwise cement dominance in a given market.
However, there are obstacles that might prevent PAMA from reaching President Biden’s desk. Both the Senate and House bills have no Republican cosponsors — they’re either Democrats or left-leaning independents like Senator Bernie Sanders. That’s enough to clear the House, but the Senate bill could fail if it doesn’t obtain total support from sitting Democrats. As such, this may represent more of a declaration of Democrats’ intentions than a fundamental change in regulatory policies.
Americans pay two and a half times more for their prescription drugs than residents of any other nation on Earth. Though generic versions of popular compounds accounted for 84 percent of America’s annual sales volume in 2021, they only generated 12 percent of the actual dollars spent. The rest of the money pays for branded drugs — Lipitor, Zestril, Accuneb, Vicodin, Prozac — and we have the Reagan Administration in part to thank for that. In the excerpt below from Owning the Sun: A People’s History of Monopoly Medicine from Aspirin to COVID-19 Vaccines, a fascinating look at the long, infuriating history of public research being exploited for private profit, author Alexander Zaitchik recounts former President Reagan’s court-packing antics from the early 1980s that helped cement lucrative monopolies on name-brand drugs.
When Estes Kefauver died in 1963, he was writing a book about monopoly power called In a Few Hands. Early into Reagan’s first term, the industry must have been tempted to publish a gloating retort titled In a Few Years. Between 1979 and 1981, the drug companies did more than break the stalemate of the 1960s and ’70s — they smashed it wide open. Stevenson-Wydler and Bayh-Dole replaced the Kennedy policy with a functioning framework for the high-speed transfer of public science into private hands. As the full machinery was built out, the industry-funded echo chamber piped a constant flow of memes into the culture: patents alone drive innovation… R&D requires monopoly pricing… progress and American competitiveness depend on it… there is no other way…
In December 1981, the drug companies celebrated another long-sought victory when Congress created a federal court devoted to settling patent disputes. Previously, patent disputes were heard in the districts where they originated. The problem, from industry’s perspective, was the presence of so many staunch New Deal judges in key regions like New York’s Second Circuit. These lifetime judges often understood patent challenges not as threats to property rights, but as opportunities to enforce antitrust law. Local circuit judges appointed by Republicans could also be dangerously old-fashioned in their interpretations of the “novelty” standard. By contrast, the judges on the new patent court, named the Court of Appeals for the Federal Circuit, were appointed by the president. Reagan stuffed its bench with corporate patent lawyers and conservative legal scholars influenced by the Johnny Appleseed of the Law and Economics movement, Robert Bork. Prior to 1982, federal district judges rejected around two-thirds of patent claims; the Court of Appeals has since decided two-thirds of all cases in favor of patent claims. Reagan’s first appointee, Pauline Newman, was the former lead patent counsel for the chemical firm FMC.
The Supreme Court also contributed to the industry’s 1979–1981 run of wins. When Reagan entered office, one of the great scientific-legal unknowns involved the patentability of modified genes. Similar to the uncertainty around the postwar antibiotics market—settled in the industry’s favor by the 1952 Patents Act — the uncertainty threatened the monopoly dreams of the emergent biotechnology sector. The U.S. Patent Office was against patenting modified genes. In 1979, its officers twice rejected an attempt by a General Electric microbiologist to patent a modified bacterium invented to assist in oil spill cleanups. The GE scientist, Ananda Chakrabarty, sued the Patent Office, and in the winter of 1980 Diamond v. Chakrabarty landed before the Supreme Court. In a 5–4 decision written by Warren Burger, the Court overruled the U.S. Patent Office and ruled that modified genes were patentable, as was “anything under the sun that is made by man.” The decision was greeted with audible exhales by the players in the Bayh-Dole alliance. “Chakrabarty was the game changer that provided academic entrepreneurs and venture capitalists the protection they were waiting for,” says economist Öner Tulum. “It paved the way for a more expansive commercialization of science.”
But the industry knew better than to relax. It understood that political victories could be impermanent and fragile, and it had the scar tissue to prove it. Uniquely profitable, uniquely hated, and thus uniquely vulnerable — the companies could not afford to forget that their fantastic postwar wealth and power depended on the maintenance of artificial monopolies resting on dubious if not indefensible ethical and economic arguments that were rejected by every other country on earth. In the United States, home to their biggest profit margins, danger lurked behind every corner in the form of the next crusading senator eager to train years of unwanted attention on these facts. Not even Bayh-Dole, that precious newborn legislation, could be taken for granted. This mode of permanent crisis was validated by the return of a familiar menace in the early 1980s. Of all things, it was the generics industry, an old but weak enemy of the patent-based drug companies, that reappeared and threatened to ruin their celebration of achieving dominance over every corner of medical research and the billions of public dollars flowing through it.
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As late as the 1930s, there was no “generic” drug industry to speak of. There were only big drug companies and small ones, some with stature, others obscure. They both sold products that were, in the parlance of ethical medicine, “nonproprietary.” To be listed in the United States Pharmacopeia and National Formulary, the official bibles of prescribable medicines, drugs could only carry scientific names; the essential properties of a good scientific name, according to the first edition of the Pharmacopeia, were “expressiveness, brevity, and dissimilarity.” The naming of drugs and medicines formed the other half of the patent taboo: branding a drug evidenced the same knavishness and greed as monopolizing one. The rules of “ethical marketing” did permit products to include an institutional affiliation—Parke-Davis Cannabis Indica Extract, or Squibb Digitalis Tincture—but the names of the medicines themselves (cannabis, digitalis) did not vary. “The generic name emerged as a parallel form of social property belonging to all that resisted commodification and thereby came to occupy a central place in debates about monopoly rights,” writes Joseph Gabriel.
As with patents on scientific medicine, the Germans gave the U.S. drug industry early instruction in the use of trademarks to entrench market control. Hoechst and Bayer broke every rule of so-called ethical marketing, aggressively advertising their breakthrough drugs under trademarks like Aspirin, Heroin, and Novocain. The idea was to twine these names and the things they described in the public mind so tightly, the brand name would secure a de facto monopoly long after the patent expired.
The strategy worked, but the German firms did not reap the benefits. The wartime Office of Alien Property redistributed the German patents and trademarks among domestic firms who produced competing versions of aspirin, creating the first “branded generic.” During the patent taboo’s extended death rattle of the interwar years, more U.S. companies waded into the use of original trademarks to suppress competition. As they experimented with German tactics to avoid “genericide” — the loss of markets after patent expiration — they were enabled by court decisions that transformed trademarks into forms of hard property, similar to the way patents were reconceived in the 1830s.
After World War II, branding and monopoly formed the two-valve heart of a post-ethical growth strategy. The industry’s incredible postwar success — between 1939 and 1959, drug profits soared from $300 million to $2.3 billion — was fueled in large part by expanding the German playbook. While branding monopolies with trade names, the industry initiated campaigns to ruin the reputations of scientifically identical but competing products. The goal was the “scandalization” of generic drugs, writes historian Jeremy Greene. The drug companies “worked methodically to moralize and sensationalize generic dispensing as a dangerous and subversive practice. Dispensing a non-branded product in place of a brand-name product was cast as ‘counterfeiting’; the act of substituting a cheaper version of a drug at the pharmacy was described as ‘beguilement,’ ‘connivance,’ ‘misrepresentation,’ ‘fraudulent,’ ‘unethical’ and ‘immoral.’”
As with patenting, it was the drug companies that dragged organized medicine with them into the post-ethical future. As late as 1955, the AMA’s Council on Pharmacy and Chemistry maintained a ban on advertisements for branded products in its Journal. That changed the year Equanil hit the market, opening the age of branded prescription drugs as a leading source of income for medical journals and associations. “Clinical journals and newer ‘throwaway’ promotional media now teemed with advertisements for Terramycin, Premarin, and Diuril rather than oxytetracycline (Pfizer), conjugated equine estrogens (Wyeth) or chlorothiazide (Merck),” writes Greene. In 1909, only one in ten prescription drugs carried a brand name. By 1969, the ratio had flipped, with only one in ten marketed under its scientific name. In another echo of the patent controversy, the rise of marketing and branded drugs produced division and resistance. By the mid-1950s, an alliance of so-called nomenclature reformers arose to decry trademarks as unscientific handmaidens of monopoly and call for a return to the use of scientific names. These reformers — doctors, pharmacists, labor leaders — made regular appearances before the Kefauver committee beginning in 1959. Their testimony on how the industry used trademarks to suppress competition informed a section in Kefauver’s original bill requiring doctors to use scientific names in all prescriptions. The proposed law reflected the norms that reigned during ethical medicine’s heyday, and would have allowed doctors to recommend firms, but not their branded products. Like most of Kefauver’s core proposals, however, the generic clause was excised. The only trademark-related reform in the final Kefauver-Harris Amendments placed limits on companies’ ability to rebrand and market old medicines as new breakthroughs.
The National Highway Traffic Safety Administration has opened the door for self-driving vehicles to operate without manual controls under updated Federal Motor Vehicle Safety Standards. While fully autonomous vehicles are likely several years away from going on sale, the new rule paves the way for automakers to remove the steering wheel and pedals.
“Through the 2020s, an important part of [the Department of Transportation’s] safety mission will be to ensure safety standards keep pace with the development of automated driving and driver assistance systems,” transportation secretary Pete Buttigieg said. “This new rule is an important step, establishing robust safety standards for [Automated Driving Systems]-equipped vehicles.”
The Federal Motor Vehicle Safety Standards regulate all elements of production cars, as Roadshow notes. The latest rule stipulates that whether or not they have a steering wheel and pedals, vehicles with automated driving systems need to offer the same level of protection to drivers and passengers as other cars.
Fully autonomous (Level 5) cars aren’t on the market yet. Teslas are at Level 2 (they have some autonomy, but a human driver needs to be ready to take control). Volkswagen is making a Level 4 version of its ID.Buzz EV, while pilot projects for robotaxis and self-driving shuttles are underway. At CES 2022, Cadillac showed off a luxury concept EV without a steering wheel or pedals.
NHTSA acknowledged uncertainty about the development and deployment of vehicles equipped with ADS. “Nevertheless, NHTSA believes it is appropriate to finalize this action at this time in anticipation of emerging ADS vehicle designs that NHTSA has seen in prototype form,” the agency said.
Instagram is trying to tackle the problem of unsavory comments that pop up during Live streams with its latest feature. Starting today, Live users can assign someone to be a moderator for their broadcasts. Moderators can report comments, switch off comments from a particular user and boot troublesome viewers from the stream.
Creators can add a moderator by tapping the menu icon on the comment bar. They can search for a specific person or choose a user from a list suggested by Instagram.
Instagram is rolling out the feature to help broadcasters focus on engaging in positive discussions instead of spending time addressing unwanted interactions. It’s a welcome move that should help to cut down on toxic comments during Lives.
The app is following in the footsteps of Twitch, which has allowed streamers to have moderators for years. Having reliable, effective mods who can handle trolls and deal with distasteful comments or messages swiftly can foster a safer environment for both creators and their audiences.
California can now set its own emission standards under the Clean Air Act, the EPA announced today. The decision puts an end to a feud that began when automakers pushed the Trump administration to revisit fuel efficiency rules, which eventually led the former president to revoke California’s waiver to declare its own standards in 2019. California is known for pushing stricter emissions requirements than the federal government, standards which have also been adopted by 16 other states and Washington, D.C.
“Today we proudly reaffirm California’s longstanding authority to lead in addressing pollution from cars and trucks,” EPA Administrator Michael S. Regan said in a statement. “Our partnership with states to confront the climate crisis has never been more important. With today’s action, we reinstate an approach that for years has helped advance clean technologies and cut air pollution for people not just in California, but for the U.S. as a whole.”
The EPA also confirmed that other states can once again adopt California’s standards. As the LA Times reports, the EPA decision means that California can continue with its plan to ban sales of gasoline vehicles by 2035. In January, Governor Gavin Newsom announced a $10 billion plan to accelerate EV adoption, with a focus on making EVs more accessible for low-income consumers, building out more charging infrastructure and electrifying the state’s fleet of vehicles.
Elon Musk isn’t backing down in his rejuvenated campaign against the SEC. Ars Technicareports the Tesla chief has asked a federal court to terminate his $20 million settlement with the SEC in 2018 over claims the regulator both pressured him into an agreement and overstepped its limits. Musk felt “forced” to sign the consent decree at a time when Tesla’s financial health was at risk, according to the memorandum of law sent to the court. The EV executive also insisted in a declaration that he told the truth in tweets at the heart of the dispute — he maintained he really had been considering taking Tesla private and had secured funding.
Musk also characterized the SEC’s approach as “governmental abuse.” Officials were allegedly using the agreement to police Musk’s First Amendment free speech rights by requiring that he pass tweets through an approved monitor who would determine what he could say. The SEC has also made compliance “more onerous” than the settlement originally demanded, Musk’s attorney argued. The Commission supposedly interpreted the consent decree as granting powers it didn’t previously have, letting it issue subpoenas and otherwise conduct “never-ending investigations.”
Musk further called for an order determining that a November 2021 subpoena over insider trading allegations exceeded the SEC’s authority and was issued in “bad faith.” The Twitter poll in question was just meant to gather input, Musk claimed, and not a disclosure of information the exec would have to report to the SEC. The Commission is investigating whether or not Musk’s brother Kimbal was aware of the impending poll when he sold Tesla shares one day earlier.
The entrepreneur has routinely sparred with the SEC. He was teasing the agency mere days after announcing the 2018 settlement, and declared he could tweet what he wanted. Most recently, he and Tesla accused the SEC of mounting a “harassment campaign” to stifle his criticism of the government. The two contended the SEC couldn’t issue subpoenas without requiring court approval.
Musk might not want to count on victory, however. The court rejected the previous demands, arguing they weren’t specific enough. This latest effort is more focused, but it also hinges on the court accepting Musk’s version of events — and that’s far from guaranteed.
