The U.S. Department of Justice (“DOJ”) recently withdrew three policy statements regarding conduct in the healthcare sector.  The statements withdrawn are the Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (dated September 1993); the Statement of Antitrust Enforcement Policy in Health Care (dated August 1996); and the Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (dated October 2011).

In a related speech, Principal Deputy Assistant Attorney General Doha Mekki said that changes in the delivery of healthcare products and services, heightened understanding of health care economics, and increased industry reliance on data necessitated the policy change.  Of note, Mekki indicated that the guidelines’ use of “safety zones” around the exchange of competitively sensitive information was no longer tenable due to the changing market. 

“Antitrust safety zones,” as used in the guidelines, described circumstances under which the DOJ and the Federal Trade Commission (“FTC”) would not challenge conduct as anticompetitive under federal law.   Such circumstances included mergers involving a small hospital, joint ventures involving high-technology medical equipment, certain joint purchasing arrangements, and the collective provision of nonprice information for healthcare consumers.

The guidelines also recognized “safety zones” for the exchange of competitively sensitive information, such as price and cost information.  Competitively sensitive information was within a “safety zone” if the information was exchanged using (a) a survey managed by a third-party, (b) information more than three-months old, and (c) aggregated data from at least five providers.

Although these policy statements centered on the healthcare industry, the information exchange policies were used as guidelines for all industries.  The withdrawal of such guidelines and the lack of any imminent replacement is likely to create uncertainty surrounding what information companies can share with competitors and what form that information should be in.

Added to this uncertainty is the fact that the FTC has not withdrawn from the policy statements.  The 2000 joint FTC and DOJ Antitrust Guidelines for Collaborations Among Competitors is also still in effect.  Those guidelines indicate that an independent third-party entity can lessen the likelihood of anticompetitive effects arising from information sharing between competitors.

It is likely that the DOJ will engage in a case-by-case analysis of information exchanges moving forward.  Enforcement actions will help inform what means of information exchanges are permissible.  Recent enforcement actions regarding information sharing, such as the DOJ’s 2022 poultry processors lawsuit,  indicate that aggregated data managed by third-parties will still reduce the risk of running afoul of antitrust laws.  In the 2022 lawsuit, poultry processors violated antitrust laws because the data gathered was “current, disaggregated, and identifiable.”