Announced Actions for December 2, 2005

Commission authorization of the staff to file amicus brief: The Commission has authorized the filing of an amicus brief in In re Tamoxifen Citrate Antitrust Litigation, a case pending before the U.S. Court of Appeals for the Second Circuit. The case concerns a decision by a divided panel of the Appeals Court upholding the dismissal of an antitrust challenge to a patent litigation settlement between AstraZeneca, the manufacturer of tamoxifen citrate, the most widely prescribed drug for breast cancer treatment, and Barr Labs., a U.S. Food and Drug Administration applicant for a generic counterpart.

According to the FTC’s brief, the Appeals Court should rehear the case to correct its previous decision. The brief argues that the Appeals Court’s panel did not properly consider the Hatch-Waxman Act, which encourages challenges to pharmaceutical patents to facilitate the early entry of generic drugs into the market. In addition, the brief states that the Appeals Court’s decision, if not corrected, would permit the holder of a challenged drug patent to harm competition, and thus consumers, by unjustifiably paying a would-be generic rival to stay off the market.

The Commission vote authorizing the amicus brief, which can be found as a link to this press release on the FTC’s Web site, was 4-0. (FTC File No. 03-7641; the staff contact is Imad D. Abyad, Office of the General Counsel, 202-326-2375.)

Issuance of Commission report: The Commission has issued a study entitled “Report on Ethanol Market Concentration” that examines the current state of ethanol production in the United States and measures market concentration using capacity and production data. The study considers the possible effect on market concentration of marketing agreements between ethanol producers and ethanol marketers. The study concludes that U.S. ethanol production is not unduly concentrated and that existing concentration levels do not justify a presumption that one firm, or a small group of firms, could wield the market power necessary to coordinate on prices or output.

The study also concludes that the likelihood of anticompetitive conduct is even lower than the production concentration levels might suggest because significant new entry in ethanol production and marketing will occur in the next year and is expected to continue for several more years. Furthermore, the likelihood of anticompetitive behavior would be even lower if ethanol is considered part of a larger antitrust product market that includes gasoline or certain gasoline blendstocks. The study, which is available now on the Commission’s Web site and as a link to this press release, was submitted to Congress and the Administrator of the U.S. Environmental Protection Agency, as required by Section 1501(a)(2) of the Energy Policy Act of 2005, as codified at 42 U.S.C. Sec. 7545(o)(10). Similar studies will be produced annually.

The Commission vote to issue the study, which was prepared by the staff of the Bureaus of Competition and Economics, was 4-0. (FTC File No. 051-0242; the staff contact is John Seesel, Associate General Counsel for Energy, Office of the General Counsel, 202-326-2702.)

Publication of Federal Register notice: The Commission has authorized the publication of a Federal Register notice announcing a final amendment to the Rules and Regulations under the Textile Fiber Products Identification Act, 16 C.F.R. Part 303. According to the notice, which will be published shortly and can be found on the FTC’s Web site and as a link to this press release, the Miscellaneous Trade and Technical Corrections Act of 2004, enacted on December 3, 2004, amended the Textile Act, 15 U.S.C. § 70, to impose new requirements for the disclosure of country of origin information on socks. After the effective date of the amendment, March 3,
2006, the country of origin must be placed on the front of the package for most kinds of socks. Accordingly, the FTC has amended its Textile Rules to incorporate this statutory change.

The Commission vote approving the amendment and publication of the Federal Register notice was 4-0. (FTC File No. P94804; the staff contact is Carol J. Jennings, Bureau of Consumer Protection, 202-326-3010.)

Copies of the documents mentioned in this release are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. Call toll-free: 1-877-FTC-HELP.