October 25, 2021

Volume XI, Number 298

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October 22, 2021

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Medical Device Manufacturers, Beware: FTC Ramps Up Enforcement Against Repair Restrictions

The Federal Trade Commission (“FTC”) recently released a policy statement addressing repair restrictions imposed by manufacturers and sellers (“Policy Statement”). The Policy Statement was the result of an FTC workshop entitled “Nixing the Fix,” and took a deep dive into how contractual restrictions on the right to choose repair services might “substantially increase the total cost of repairs, generate harmful electronic waste, and unnecessarily increase wait times for repairs.”

Monopolistic Repair Practices

The Policy Statement characterized certain of these restrictions as potential “tying arrangements or monopolistic practices—such as refusals to deal, exclusive dealing, or exclusionary design . . . .” It added that these practices could amount to violations of the Sherman Act and Section 5 of the FTC Act.

A Caveat to Medical Device Manufacturers

Although the focus of both this workshop and the resulting Policy Statement may have been the impact on smaller businesses when large businesses impose these restrictions upon consumers, the Policy Statement’s application could be much broader. As the health care industry continues to be a target, manufacturers and suppliers of expensive medical technology that impose contractual repair restrictions should take note.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 238
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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney
Member

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

202-861-1825
Patricia M. Wagner, Epstein becker green, health care, life sciences
Member

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of...

202-861-4182
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