FTC Joins DOJ in Withdrawing Health Care Antitrust Guidance

In February 2023, we issued an alert on the DOJ’s withdrawal of three antitrust policy statements related to the DOJ’s enforcement of health care markets and for health care providers. In that alert, we noted that although expected, the FTC had not yet withdrawn these statements, which would require a vote by the FTC Commissioners to do so.

On July 14, the FTC announced the three current sitting Commissioners voted 3-0 to rescind these statements. The FTC’s announcement follows much of the same reasoning put forth by the DOJ this past February: “the statements are outdated and no longer reflect market realities” and “the statements no longer serve their intended purpose of providing accurate guidance to market participants.” The FTC similarly decided not to issue new policy statements to replace the withdrawn statements, and instead referred the public to the FTC’s prior enforcement actions, current policy and advocacy statements in health care as guidance. 

Our prior alert analyzed the significance of the DOJ’s withdrawal of the policy statements for the health care industry, and provided guidance for companies to follow in areas such as information exchanges, clinical integration and group purchasing going forward. In light of the FTC’s withdrawal of the same policy statements, that guidance should continue to be followed to minimize antitrust risk.

This serves as a good opportunity to check-in on your activities in these areas to ensure appropriate antitrust safeguards are in place and followed — for example, in joint ventures with competitors, in clinical integration activities and with your group purchasing organizations (GPOs). Parties should continue to be cognizant of the agencies’ heightened interest in areas covered by these statements, and work with counsel to follow best practices to avoid antitrust risk.