Silencing the Competition: Inside the Fight Against the Hearing Aid Cartel
Why do Americans pay eight times more for hearing aids than the British? Hearing aids are big business, and a cartel controls the industry through mergers, patents, and control of audiologists.
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Today I’m writing about the Biden administration’s action against the hearing aid cartel, a group of firms who control the market for devices that help the hearing-impaired. While interesting in and of itself, the structure of this industry is similar to how many other parts of the health care system work, like glasses, dentistry, and contact lenses. So if you have eyes, ears, or a mouth, this issue is for you.
Consumer Finance Regulator Rohit Chopra Immediately Goes After Big Tech, Private Equity
Amazon Threatens Third Party Sellers Over Congressional Action
Are Biden’s Actions on Ports Making the Supply Chain Problem Worse?
What Happens When a Merger Is Blocked? Innovation!
Will Section 230 Undermine Your Credit Score?
How Meatpackers Corrupt Economics Professors
First, some house-keeping. I got a great reaction from last week’s piece on economists, cattle ranchers and beef monopolists, I heard from multiple sources that the story rattled some cages, and Minnesota Attorney General Keith Ellison even tweeted about it. Also, we did our first community discussion with paid subscribers on Sunday, and I was honestly floored by the fascinating and high-level conversation among people in so many different industries. Check it out if you’re a subscriber.
Finally, I was on the excellent show Breaking Points to discuss how this newsletter fits into the broader anti-monopoly world.
For decades, buying a hearing aid in the U.S. has been an experience in humiliation. Hearing loss is pervasive, with two thirds of people over the age of 70 experiencing some form of it. Despite that, only 20% of people who have hearing loss actually use hearing aids, and one of the big reasons is price. The average cost of such devices is $4700 per pair, for what is essentially a highly advanced adjustable microphone. With 40 million Americans suffering from some form of hearing loss, which can lead to dementia, a lot of people go without and just suffer, or don’t replace hearing aids when they break, because of this high price.
The reason for this excess cost is pure profit margin for the manufacturers. We know this because independent audiologists pay between three to four times as much as Costco does for the same device. So why are hearing aids so expensive? One reason is that the Food and Drug Administration requires a prescription to get one, making it hard to bring cheaper and more innovative devices to market. Hearing aids had traditionally required lots of adjustment and fitting from a specialist, and while specialists offer critical help, a hearing aid is basically just a microphone in your ear. That technology is much easier for individuals to set up with smartphones and other innovations in consumer electronics over the last ten years. "It just seems crazy that hearing aids haven't become much less expensive, much like every other type of digital technology, and much more user friendly," said Christine Cassel, the former CEO of the American Board of Internal Medicine.
Since 1993, advocates have been calling for the FDA to loosen these tight regulations, and the calls got louder over the years. In 2015, the President’s Council on Science and Technology issued a report seeking to make these devices more widely available. The next year, the National Academies of Science, Engineering and Medicine issued a similar report.
Finally, in 2017, Congress acted. Led by Democratic Senator Elizabeth Warren and Republican Senator Chuck Grassley, Congress passed a bill titled the Over-the-Counter Hearing Aid Act, mandating that the Food and Drug Administration allow hearing aids without a prescription. The goal was to remove a barrier to entry, and introduce new cheaper competition. Sure enough, Bose soon sought to enter the market, and there are rumors of Apple coming in as well. The bill didn’t pass without opposition; the hearing aid cartel dumped cash into front groups, but Congress ignored them and moved the bill, which then-President Trump signed into law.
The law imposed a deadline for the FDA of 2020, but FDA officials tend not to think about competition or pricing as relevant to their job. FDA regulators tend to like high prices for medicine, since they see high profits as helping to finance more research. This perspective is clearly problematic, but the FDA operates very much like a priesthood, similar to the Federal Reserve. So the FDA simply refused to write the law, until the Biden administration pressured them with an executive order a few months ago.
And sure enough, yesterday, in a strike against a cartel of hearing aid manufacturers who have inflated costs for these devices, the FDA published new rules to create this over the counter market. Specifically, the FDA’s rules would let companies sell hearing aids without a prescription from a hearing aid specialist. The rules are, from what I can tell, pretty good. People under 18 years of age would still require a prescription, as would anyone with severe hearing loss. The FDA set specific limits on noise levels, frequency, distortion, and insertion depth, and subjected them to labeling requirements. The people I know in the industry think these make sense.
But interestingly, yesterday, when the rule was announced, the stock prices of the major hearing aid producers didn’t change. Wall Street, in other words, isn’t particularly concerned that margins for hearing aid producers will go down. Now there are many possible reasons for this. Perhaps stockholders are just wrong, or perhaps they think “I’ll believe it when I see it.” But I’ve learned a lot about the hearing aid market since last May, and it turns out that these firms use a variety of techniques to keep prices high, mirroring how most medical markets are screwed up by corrupt middlemen. So the creation of an OTC market is just the start of the battle.
How To Keep Hearing Aid Prices High: Patents, Conflicts of Interest, and Vertical Integration
The key players in the market are six firms most of us haven’t heard of: WS Audiology, Amplifon, Sonova, GN, Demant, and Starkey. These firms also own a bunch of hearing aid brands, so even if you have a hearing aid that isn’t branded as one of these firms, it’s likely that it comes from one of them.
The competitive dynamics in this field are complex, but the hearing aid cartel uses three basic mechanisms to retain their dominant market power. The first is what’s called a patent pool, which is when a bunch of firms come together to share essential patents, often with the goal of excluding others from the business. For instance, in the early 1900s, JP Morgan, had both Westinghouse and GE combine patents into a pool, which then blocked others from producing equipment for electric utilities.
In the hearing aid market, the patent pool is centered in a corporation called the Hearing Instrument Manufacturers Patent Partnership, which holds patents for much of the industry. HIMPP, according to its website, develops, manufactures and markets “over 90% of the hearing technology available to consumers worldwide.” If you want to enter the market with a new device, it’s likely you’ll infringe on one of these patents, which means you’ll have to pay licensing fees, which cost either $2.5 million or 1% in royalties annually. HIMPP also keeps an eye out on “hearing aid related patent activity by parties other than HIMPP partners,” with the goal of opposing granting of patents to non-partners. It is, in other words, a club.
The second barrier is that most of the major producers of hearing aids have engaged in vertical integration. So, what is vertical integration? Vertical integration is when a firm owns an important supplier or buyer up and down the supply chain, like a retailer owning a distributor or a steelmaker owning a coal mine. Here’s Jack Donaghy on 30 Rock with perhaps a more clear explanation.
In the case of hearing aids, several of these firms actually have subsidiaries that manage the hearing part of health insurance. WS Audiology, for instance, owns TruHearing and Hearing Care Solutions, which runs health care plans and discount plans for Medicare Advantage insurers, including Humana, BC/BS, Anthem, Aetna, Cigna, etc. So if you have health insurance with, say, Aetna, and you need a hearing aid, Aetna will send you to a hearing aid manufacturer to tell you whether you need a hearing aid. Surprisingly, they often answer, “Yes, and you need an expensive one!”
But how do these hearing aid makers manage to do so credibly? It’s simple. These manufacturers also own or affiliate with networks of audiologists and hearing aid specialists. Starkey, for instance, not only owns a benefit management company Start Hearing, but runs the hearing aid specialist network Starkey Hearcare. So most people with a hearing loss problem will use their insurance, which, controlled by a hearing aid maker, will send them to an audiologist who is also employed by that hearing aid maker. Most people won’t know about these embedded conflicts of interest, or the various rebates, commissions, and kickbacks that are likely involved.
In essence, while there are six major firms, and six looks like a lot, these firms aren’t competing based on price or quality, but based on who can be in charge of allocating market share. And there are a few more ways these firms control the market. There are government contracts; Starkey generated $60 million from Federal contracts last year alone (most from the Veterans Administration). Some devices, like Beltone, have restrictions that block anyone but the manufacturer from trying to repair them, which is a classic way of extracting more revenue from locked-in customers.
When I first started writing about this market, I thought that audiologists were cut in on the deal. It turns out it’s more complicated than that. There are audiologists who work for the cartel, but there are also roughly 2500 independent audiologists in the U.S. These medical professionals depend on the medical device makers, for both devices and information about these devices. But many of them support getting rid of the need for prescriptions for hearing aids, since they do screenings, fittings and medical treatment, and don’t want to be dependent on the big firms who allocate market share and gouge customers. New entrants into the market would be good for the customers. But, as the independent audiologists are small businesses spread out across the country, they don’t have significant clout.
The hearing aid makers, however, do have clout. A lot of it.
The Politics of Monopoly Maintenance
Undergirding much of the power of the cartel is lobbying and campaign contributions, with hearing aid firms using political muscle to press states to prevent the sale of non-hearing aids through the internet. Ever since the 2017 bill passed, Starkey has become one of the leading donors in the medical device space. In this election cycle alone, the founder of Starkey, William Austin, has personally donated $125,000 to Kevin McCarthy, the House Republican leader, along with over $330,000 to the Republican Party committee whose goal it is to win back Congress. Last cycle, Starkey spent $1.6 million on campaign contributions, which included contributions to the state Republican party of Georgia, North Carolina, Kansas, Iowa, Maine, Michigan, and Tennessee. But these donations, while tilting right, affect both parties. Austin, along with other Starkey executives, have given $16,400 to both Democratic Senate majority leader Chuck Schumer and West Virginia Democratic Senator Joe Manchin.
In fact, as Democrats debate a large social spending package, with Bernie Sanders focused on making sure that Medicare covers hearing loss, Starkey set up an advocacy group called Listen Carefully to exempt hearing aids from competitive bidding in Medicar. The video comically chides politicians for being ‘narrowly focused on costs,’ as if cutting into their profit margins is some gross disservice to the hearing impaired. And who is the swing vote on the current package before Congress? It’s Joe Manchin, the politician Starkey’s executives have been targeting with donations.
These firms haven’t just relied on political muscle, but also on mergers. Since the 2017 bill passed, Sonova bought the consumer part of Sennheiser’s business, Bragi sold off its hardware business in bluetooth earpieces to an unnamed company (probably Starkey), and the patent pool HIMPP acquired patents from SoundID, SoundHawk, iHear Medical Inc, Acouva, and ExSilent Research. All of these could be considered ‘killer acquisitions’ of nascent competitors who otherwise might have entered the new OTC hearing aid market.
Nevertheless, it’s all done to help people with hearing loss, or so they say. Indeed, as I researched these firms, the rhetorical strategy became clear. All of these tactics - from the conflicts of interest to the patent pooling to the restrictions on sales to the political donations - are done in service, apparently, to safety for the hearing impaired. And that’s what you’ll find across the U.S. medical industry, justification for profit margin clothed as critical for health and wellness.
This story of industry structure, soft corruption, and harm, along with an attempt by regulators to push back, is not isolated to hearing aids. In fact, the hearing aid market looks a lot like glasses or dental implants; consumers rely on a trusted medical professional, who has in some cases been subverted by a dominant firm, or in other cases is holding out to help patients, but has increasingly less power in either case. These suppliers all have similar consolidated dynamics, with deep relationships among the specific medical professionals who treat patients and the firms selling the product at inflated prices.
For instance, Luxottica owns most major glasses retailers (like Sunglass Hut and Lenscrafters), it is dominant in lens-making and it has relationships with eye doctors to make sure that most players in the industry have to play ball and buy high-cost glasses. The only exception is Warby Parker, which has its own vertically integrated business structure. (The expense is kind of amazing, given that glasses are more than 1000 years old!) In dental implants and supplies, it’s Henry Schein, and while I haven’t looked at that market in detail, from what I understand the dynamics of pricing are similar.
What’s exciting is that finally anti-monopolists in Congress and the administration have noticed the hearing aid problem, and they are acting. It started with creating an over the counter market, which will have an impact on whether people can get hearing aids. But I suspect, as policymakers begin working through the nest of conflicts of interest in these systems, it won’t stop there.
UPDATE: Hearing Tracker shared this awesome map of the different hearing aid brands and how most of them are controlled by a member of the oligopoly.
I also came upon this market analysis by the Global Partnership for Assistive Technologies on the worldwide market for hearing aids. Some remarkable stats:
The five largest manufacturers control 90% of the market.
These hearing aid firms have “earnings (before interest and taxes) margins of around 25% and gross margins of around 70-80%.”
Acquisitions of smaller promising companies by the Big 5 keeps the market consolidated.
These firms use “strong bargaining power with audiologists and can leverage exclusive contracts with them in exchange for discounted pricing.”
These firms use lock-in strategies. “Each supplier has its own proprietary fitting software, complicating the learning process for audiologists when they to shift to another supplier.”
At $4800 for two hearing aids, buying hearing aids is “the third largest purchase for many after a house and a car.” These firms bundle the device and the fitting/medical service, making it impossible for consumers to understand what they are paying for.
The UK government buys hearing aids at $68/apiece, versus the wholesale price to retailers and audiologists in the U.S., which is between $300-600. That is eight times the price.
The Big Five focus almost entirely on wealthy countries, leaving hearing loss in the developing world largely untreated.
Consumer Finance Regulator Rohit Chopra Takes on Big Tech, Private Equity: Fresh from his stint at the FTC, new Consumer Financial Protection Bureau Director Rohit Chopra is getting off to a fast start. Today he announced the bureau will be looking into how tech companies are handling data in the finance space, requesting information from Amazon, Apple, Facebook, Google, PayPal, and Square, as well as studying Chinese payment firms Alipay and WeChat Pay. Payments is a tempting area for big tech - remember Facebook’s Libra fiasco? (Facebook hasn’t given up, it is now launching a digital wallet.)
The CFPB order is designed to find out how these firms decide who they will approve and kick off their payment networks, as well as what do they do with the power they amass via data and surveillance.
And this announcement comes immediately after Chopra imposed a fine on JPay, which is the dominant firm for payment systems for prisons. JPay is owned by private equity billionaire Tom Gores, and the firm has been stealing from prisoners by charging illegal fees. Chopra had JPay sanctioned. Notice the rhetoric around market structure and competition.
Led by Chopra, the anti-monopoly movement is moving beyond antitrust.
Amazon Threatens Third Party Sellers Over Congressional Action: Last week, a large bipartisan group of Senators introduced a bill banning self-preferencing by dominant platforms. This bill targets, among other things, Amazon’s practice of putting its own products ahead of third party sellers on Amazon marketplace.
Colorado Republican Ken Buck, who helped write the House version of the bill the Senate just introduced, tweeted today about Amazon’s new political strategy. Apparently the retail giant is scaring third party sellers into opposing antitrust activity by telling them that if the bill passes, Amazon will have to kick them off its marketplace. Here’s Buck.
You can expect a lot more of this. Dominant firms are going to say the sky is falling, and may even shut some services down as a threat. And actually, this kind of threat shows the extent of Amazon’s dominance. We do not want firms who can take a large number of businesses hostage. That Amazon can do so shows the firm is simply too big and powerful.
Are Biden’s Actions on Ports Making the Supply Chain Problem Worse? Recently, Joe Biden announced that he would address the mess at the Port of Los Angeles by moving it to 24 hours 7 days a week activity. This sounds like it makes sense, as it means more time to load and unload. But there’s something snarling the ports: empty shipping containers which are forty foot long steel structures that require warehouse space if they aren’t being used to move things. And the increased unloading is causing more empty shipping containers to take all available space, and now even pile up such that firms have to put them in residential areas.
This problem is weird, and it shouldn’t be happening. Large ships, which usually bring full containers to the U.S. and empties back to Asia, are no longer bringing the empties back. And it’s not clear why.
This problem is certainly occurring in other ports, like Tacoma. Phillip Sanfield, an official at the Port of LA, told me that yes, “Indeed, we are swamped.” And he didn’t have any guesses as to why. “I don’t have any insights into why shipping lines are refusing to pick up empties,” Sanfield added.
One possible reason, albeit a bit out there, is that having less capacity allows the shipping oligopoly to increase prices, which are now spiking. Refusing to bring back empties would be a nice way to force prices up while making the increase in costs seem like the result of a natural logjam. I have a hard time believing this, but I don’t have any other ideas.
At any rate, it’s a huge problem, perhaps a key driving force behind supply chain snarls at the ports. With too many empties taking up space, the terminal is not able to receive more empty containers coming back to the port. This makes it basically impossible to operate the port at any reasonable speed. Without getting the empties out of the port, the Biden announcement of moving the port to a 24/7 schedule will simply cause the pile-up to worsen. As a source told me, “it all starts with the empty containers.”
At any rate, if you have any guesses about why shipping lines aren’t bringing back empties, let me know. Maybe there’s a simple explanation that I’m missing.
Will Section 230 Undermine Your Credit Score? Since 1997, The Source for Public Data, L.P, a firm that sells dossiers on individuals, has been compiling background information from public records, such as criminal files, and selling it, often to employers who are getting background information on potential hires. As one might expect, there are frequently errors in such data, like applying the wrong name to a record, which causes serious problems for individuals who cannot get jobs because they are wrongly understood to have engaged in criminal activity.
Naturally, people have been litigating against Public Data for years, asking the firm to correct inaccurate information. Regulators have also been investigating Public Data as well, because what it is doing fits under a well-understood problem: consumer and credit reporting. A credit report is a basic mechanism that sets the terms by which people in modern America can get credit, insurance, and sometimes employment. Traditionally, selling dossiers for use by employers or credit decisions fits under a law called the Fair Credit Reporting Act, which was passed in 1970 because, well, people were having trouble with inaccurate information in their credit reports, and couldn’t get jobs because of it.
Since Public Data is engaging in what has been understood to be a well-regulated activity, you would think that it would come under a regulatory purview. But the firm has refused to obey the Fair Credit Reporting Act. We are not a consumer reporting agency, they said, we are a website that is merely facilitating speech by selling data. Much like Facebook isn’t liable for what its users say because law called Section 230 of the Communications Decency Act shields the firm from liability for third party speech, Public Data isn’t responsible for the accuracy of information it procures from third parties. And surprisingly a judge recently agreed with them. Now, Public Data isn’t that important a firm, but the case is widely watched, because if the loophole a judge punched through the law stands, then a lot of financial rules are going to be tossed out the window.
Rohit Chopra at the Consumer Financial Protection Bureau and Federal Trade Commissioner Lina Khan, along with the North Carolina Department of Justice, have appealed the decision. For years, this kind of legal shapeshifting would go unnoticed, or even nodded at benevolently by regulators in the name of disruption. But we have a new generation in power. Khan and Chopra have made it clear that they are going to push back.
What Happens When a Merger Is Blocked? Innovation!
Earlier this year, the Department of Justice blocked a merger of VISA and Plaid, a firm that focused on building tools for payment systems. What was the result? Plaid is now going to compete with VISA over payments. As economist Cristina Caffarra tweeted, “there can be life, and even more innovation if you can’t sell yourself to the Big Guy. Selling off to incumbents is not the only way.”
Thanks for reading. Send me tips on weird monopolies, stories I’ve missed, or comments by clicking on the title of this newsletter. And if you liked this issue of BIG, you can sign up here for more issues of BIG, a newsletter on how to restore fair commerce, innovation and democracy. And consider becoming a paying subscriber to support this work.
P.S. After last week’s issue, I got a bunch of feedback on how meatpackers work with land grant universities like Texas A&M and Kansas State University. There are significant donations, with facilities being remodeled and named after large national supply corporations. And there is a thicket of what blurs the line between reasonable relationship building and soft corruption.
For instance, this is an email that went out to economics professors at agricultural schools. When first reading it, it seems pretty reasonable, but there are offers of an all-expenses trip, soft promises of research funding tied to supporting a brand, and of course, free steak. This is the social ecosystem that academics are surrounded by.
Dear Professor XYZ,
I thought I’d start this email with a joke, but since I’m a meat scientist I tend to butcher them!
Jokes aside, Certified Angus Beef has opportunities for your students interested in learning more about the beef business. Please share these with your classes and with any ag college circulars and updates to help us get the word out to apply. Deadlines for our internships and college events are early November.
Students with a passion to learn and share about the beef industry should apply for Youth Beef Leaders Seminar. A committee will choose five applicants to attend a 3-day, all-expenses-paid event at the Certified Angus Beef Culinary Center in Wooster, Ohio, on December 15-17. Attendees network with collegiate Angus leaders and CAB staff while learning more about the opportunities that premium beef offers Angus cattlemen. We guarantee great beef for every meal, an inside look at CAB and how it has positioned itself as the leading beef brand in the world. Applications are due by November 10. Students can learn more and apply at: https://certifiedangusbeef.bamboohr.com/jobs/view.php?id=134
Applications are also open for our summer communications internships. Certified Angus Beef will fill three positions. Those selected will be asked to attend Youth Beef Leaders Seminar in December, all expenses covered. Applications are due November 19. To learn more and apply, please visit: https://cabcattle.com/internship/
Finally, I am curious what research you and your graduate students are working on related to beef quality. I would like to hear from you and potentially collaborate on projects as it makes sense for the brand.
As always, let me know if you have any questions or if I can supply any additional materials for you to promote these opportunities for your students.
And there we go. There’s nothing that appears to be immediately unethical about this email, but given what we’ve learned about how agricultural economists support the dominance of middlemen over independent ranchers, something about it feels… off.