On February 3, 2023, the Antitrust Division of the Department of Justice (DOJ) withdrew its nearly 30-year-old guidance on information exchanges in the healthcare industry, including the "safety zone" for benchmarking that the antitrust agencies had suggested also applied to participants in other industries. Up until the withdrawal, the DOJ guidance, jointly issued with the Federal Trade Commission (FTC), provided a "safety zone" for information exchanges that followed certain guidelines, such as using third parties to collect data, limiting the exchange to information that was at least three months old, and aggregating data so that it would not be identifiable by participant. Over the years, many trade associations, professional societies, and businesses have structured their industry data programs in a manner consistent with this guidance in order to minimize antitrust risk.
The withdrawal is effective immediately and impacts three policy statements:
- Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993)
- Statements of Antitrust Enforcement Policy in Health Care (Aug. 1, 1996)
- Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011)
DOJ has stated that there are no current plans to replace the withdrawn guidance, which it determined was "overly permissive" on information sharing. Moving forward, "a case-by-case enforcement approach will allow the Division to better evaluate mergers and conduct in healthcare markets that may harm competition." The FTC has not yet weighed in on the implications of the withdrawn guidance, which for the time being continues to reflect its policy. That said, the FTC is widely expected to follow suit.
Related guidance from DOJ and the FTC could soon face revision or withdrawal as well. Both Antitrust Guidelines for Collaborations Among Competitors (April 7, 2000) and Antitrust Guidance for Human Resource Professionals (Oct. 20, 2016) cite to the now-withdrawn policy statements for the same general principles on information sharing.
This withdrawal is just the latest in a string of DOJ and FTC actions withdrawing prior guidance and comes at a time when DOJ is increasingly active in its enforcement of alleged anticompetitive information exchanges.
The law remains that the exchange of competitively sensitive information, without an agreement to fix prices, is not itself a per se violation of the Sherman Act but is instead assessed under the "rule of reason." However, without detailed guidance from DOJ or the FTC about the types of information exchanges that are permissible moving forward, it is critical to consult antitrust counsel regarding any existing or contemplated information sharing or benchmarking, particularly among competitors.