A new toolkit for gender-inclusive competition law

Until recently, competition policy has been considered through a gender-neutral lens – focused on “average” consumers, characterised by economically rational criteria and preferences, and the generic profit-maximizing activity of firms. Does ignoring the impact gender has on firms and consumer decision-making necessarily lead to optimal competitive or societal outcomes? Can, and should, competition policy and enforcement take gender into account?

Research by the OECD, funded by the Canadian Government, suggests that gender differences may have an impact on the competitive process and in September 2023, it published a toolkit designed to help competition authorities incorporate gender considerations into their work.

The toolkit recommends applying a gender-sensitive approach across the lifecycle of merger and competition/antitrust cases – covering the setting of enforcement priorities and diversity of the competition authority staff, case selection, merger and cartel investigation design, market definition, data gathering and analysis, effects analysis, remedy scoping and compliance process design. Though focused on gender, the toolkit encourages competition authorities to consider how a range of diverse and disadvantaged groups may be disproportionally impacted by anti-competitive behaviours, and how authorities can better account for real consumer characteristics in competition policy. The OECD is due to present the toolkit recommendations at the Lear Competition Festival in Rome on 29 September 2023.

Gender-inclusive competition policy research findings

Since 2018, the OECD and Canadian Competition Bureau have been developing evidence on how applying a gender lens can deliver more effective competition policy. As part of this work, the OECD commissioned seven research papers considering the impact of gender in enforcement prioritisation, market definition, cartel behaviour, and public interest considerations. The papers draw from gender research across corporate governance, anti-corruption, and behavioural economics.

Key findings from these papers include:

• Gender-conscious competition analysis allows competition authorities to make better, more tailored, decisions, particularly in markets where products are offered to end consumers.
• Data needs to be disaggregated, and market definition and the nature of the firms and their conduct need to be carefully examined to uncover, and remedy, different gendered effects. For example, behavioural biases of women may differ to those of other genders.
• Analysing mergers along gender lines could mitigate against potentially poorer outcomes for female consumers or women-led businesses.
• Gender diversity can be an important variable in collusion – homogenous groups with repeat formal or informal interactions present an increased risk of cartel behaviour for companies.
• Gender should be part of any public interest considerations available to competition authorities. Authorities themselves can be strengthened by greater institutional diversity.

Toolkit recommendations

The toolkit summarises the practical takeaways for competition authorities to incorporate into their day-to-day work (and indirectly, for practitioners and companies). The recommendations centre on the following topics:

• Data gathering should be done on a disaggregated basis, to better understand how diverse groups are harmed disproportionally. Companies’ use of data profiling should be examined and surveys should be used to better understand differences in consumer behaviour across genders.
• Competitive analysis should consider supply-side and demand-side factors through a gender lens, and whether or how firms target a specific gender with a specific product. Authorities should use findings on consumer preferences to consider if there will be anti-competitive effects for a particular gender of consumer.
• Conduct investigations should factor in gender homogeneity of key decision-making groups to better detect cartelists and use gender-specific behavioural analysis to better understand incentives to collude. Authorities should target compliance efforts at industries with less staff diversity, which may be at greater risk of cartel behaviour.
• Authority decision-making should be informed through inclusive stakeholder engagement, considering gender in prioritisation decisions and ex-post evaluations. Authorities should have diverse decision-makers.

How might the new toolkit impact merger and competition cases? 

Competition authorities such as the European Commission, UK CMA, US FTC, US DOJ and others have yet to comment on the OECD toolkit (though promoting gender equality forms part of the UN and European Commission Sustainable Development Goals). Where authorities adopt the toolkit, parties could see, for example:

• More detailed data set requests from authorities, to be disaggregated by gender and other protected characteristics.
• An uptick in the use and detail-level of consumer surveys during investigation proceedings.
• Greater focus on the gender make-up of a product’s customer base, including how marketing efforts target particular consumer groups and how a product interacts with a specific customer base (relevant for example, in the case of AI driven chat bots, personalised pricing models or targeted advertising models, as well as consumer goods).
• New approaches to established market definitions and consumer harms, including segregating markets by gender or other diverse groups.
• Remedies designed to improve outcomes for specific consumer groups, not an economic “average consumer”.
• Questions on how internal compliance efforts take into account gender considerations and focus on the gender make-up of key decision-making groups within an organisation.

The proposed approach has potential to bring benefits to companies, allowing competitive differentiation between companies to emerge more clearly, disrupting established market definitions, bringing greater availability of rich consumer data sets through market studies, encouraging gender diversity in companies and informing internal risk management processes.

Part of a broader shift in competition policy?

The OECD’s research and toolkit takes a new approach focused on the decisions and experiences of specific genders and different types of consumer. The new approach forms part of a wider discussion on how competition enforcement and the consumer welfare standard can better reflect broader societal movements such as promoting sustainability, protecting rights and fighting social inequality.

Would you like to learn more?

If you would like to discuss how the new toolkit might impact on your transaction or investigation, or if you are interested more generally in the OECD’s research and recommendations, please get in touch with Morag Elwis in Silicon Valley, Kaori Yamada in Tokyo, Nick French in London, Ermelinda Spinelli in Milan or Vanessa van Weelden in Brussels, or your usual contact in Freshfields’ global antitrust group.