October 19, 2021

Chairman Dick Durbin
Ranking Member Charles Grassley
Senate Judiciary Committee
Washington, D.C. 20510

Dear Chairman Durbin and Ranking Member Grassley, 

You will soon be considering the Senate companion to H.R. 3816, the American Choice and Innovation Online Act, which would amend antitrust law relating to online business practices.  On behalf of more than one million members and supporters of the Council for Citizens Against Government Waste (CCAGW), I urge you to oppose this legislation, which would undermine and thwart the consumer welfare standard.   

The American Choice and Innovation Online Act bases the definition of practices by “covered platforms” that are deemed “unlawful discriminatory conduct” on those included in the House Judiciary Committee’s flawed Majority Report from 2020.  Citizens Against Government Waste noted when the report was released that, “while the authors claim they are promoting the ‘public good,’ if the recommendations in the report were enacted into law, it would both harm the many digital platforms Americans use today and eliminate the opportunity for new businesses to enter the marketplace.”  The American Choice and Innovation Online Act, if enacted, would ban the ability of covered platforms to sell or provide private-label goods in the marketplace, and would hinder the ability of small sellers using these platforms from finding new customers for their products.  While the legislation appears to be aimed at the covered platforms, there should be a public review of the potential collateral damage to those who have developed products and sold them successfully on the platforms. 

Antitrust laws that have been in force for more than a century have always been and should continue to be enforced based on the consumer welfare standard.  Legislation that would dramatically amend, undermine, or thwart that standard should be not be enacted by Congress.  CCAGW is also concerned about recent actions by the new chair of the Federal Trade Commission, who decided to abandon the consumer welfare standard when reviewing mergers, acquisitions, and potential antitrust enforcement activities without the opportunity for input or analysis of her unprecedented decision.   

The consumer welfare standard has been the basis for antitrust laws for decades and any reforms to antitrust laws should continue to follow this standard.  The American Choice and Innovation Online Act would dramatically undermine and thwart that standard.  For these reasons, I strongly urge you to oppose the American Choice and Innovation Online Act and any other legislation that would do away with or diminish the consumer welfare standard. 

Sincerely,
Tom Schatz
President, CCAGW

cc: Senate Judiciary Committee Members

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