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.
