The Other Shoe Drops: What the FTC’s Withdrawal of Antitrust Guidance in the Healthcare Industry and the Demise of its Information Sharing Safety Zone Means for Clients

With minimal fanfare on a quiet summer Friday afternoon, the Federal Trade Commission (FTC) did what many have been expecting it to do for several months: it officially withdrew from two healthcare antitrust enforcement policy statements (the Statements) it co-authored with the Department of Justice Antitrust Division (DOJ) in 1996 and 2011.[1] The DOJ had already withdrawn from these two Statements, plus one other Statement, on February 3, 2023.[2] One might ask what took the FTC so long. The better question, though, is now that these Statements have officially met their demise, what do we do? More specifically, are past arrangements that were permissible under the Statements now illegal? The agencies have offered nothing to replace the now-withdrawn Statements. While the law certainly has not changed, the absence of clear cut guidance in the form of the Statements makes traversing the antitrust landscape increasingly difficult for clients and counsel. In this article, we offer perspective on the Statements, what their withdrawal means in practical terms, and where we go from here.

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