US DOJ and FTC join G7 Competition Authorities in Promising Vigorous Competition Enforcement in the AI Industry
On October 3 and 4, 2024, the US Department of Justice Antitrust Division (the “Antitrust Division”) and the Federal Trade Commission (FTC) participated in the G7 Competition Authorities and Policymakers’ Summit in Rome to discuss cooperation and enforcement priorities in the Artificial Intelligence (AI) industry. At the end of the summit, the parties issued a joint Digital Competition Communiqué outlining the competition risks, guiding principles, plans for coordination, and roles of competition authorities in ensuring robust competition in the AI space. This statement builds on past joint statements, and strongly suggests that the DOJ and FTC—as well as their foreign counterparts—intend to take increased enforcement actions against companies in the AI industry going forward.
The Communiqué emphasized that the G7 members are committed to “vigorous and timely competition enforcement” and emphasized several areas of “significant competition concern:” (1) the concentration of AI inputs and infrastructure, including energy access; (2) “self-preferencing” and bundling of products by large tech companies; (3) the use of algorithms to fix prices or wages; (4) partnerships among AI firms, which could serve similar purposes as mergers without merger review; and (5) suppression of competition in related markets, which large incumbents could allegedly use to increase their power in AI. The Communiqué also explained that these concerns could “spill over” to other areas for enforcement, including the privacy, consumer protection, and copyright spaces. The Communiqué concluded by reiterating a “commitment to dialogue and knowledge sharing among G7 competition agencies and policymakers” and a plan to build a “shared global expertise” to confront the challenges to competition posed by AI.
In addition to the United States (and the European Union), the other members of the G7 are Canada, France, Germany, Italy, Japan and the United Kingdom.
While the G7 has shown coordination in antitrust enforcement actions in the past, its competition authorities now exhibit an unusually high level of coordination as they each wrestle with the emerging AI industry. Just one year ago, the G7 competition authorities also gathered to discuss the risks associated with the increased growth of the AI industry, and they issued another Digital Competition Communiqué which outlined in broader and more general terms many of the same themes that the group expanded upon in its most recent Communiqué. Three months ago in July, Lina M. Khan, Chair of the FTC, and Jonathan Kanter, Assistant Attorney General for the Antitrust Division, joined competition authorities from the UK and the European Union in signing on to a Joint Statement on Competition in Generative AI Foundation Models and AI Products. While this statement emphasized that decisions of these competition authorities “will always remain sovereign and independent,” it acknowledged that the perceived risks of AI—concentration of inputs, market power, and partnerships among industry participants—will be global in nature, and outlined the agencies’ key concerns regarding competition in the AI industry.
Things are changing rapidly in the AI enforcement space, and with those changes comes increased uncertainty for companies operating in the AI sector. Ultimately, companies should know that if they receive outreach from one of these competition authorities related to their AI use, they should expect to hear from the other G7 competition agencies in the countries in which they operate, and should assume an open flow of information among these agencies. Right now, there are ongoing investigations launched by multiple authorities into the same partnerships between major tech companies and innovative AI companies.
Because of these rapid new developments, it is more important than ever to seek legal guidance if your company has questions regarding the use of AI, or receives outreach from any enforcement agency. Mayer Brown is prepared to advise and counsel companies on the implications of these developments in their current and future business activities in the AI space. Please do not hesitate to reach out to any of the authors for further information about this topic and additional developments.
For further Mayer Brown analysis on global enforcers' response to AI, and Competition and AI Law generally, please see AI Challenges in Competition Law: How Are Regulators Responding? and Expert Q&A on the Competition Law Issues Raised by Generative AI
