New Antitrust Collaboration Guidelines: Comment Deadline Approaches

Summary — The time period for the public to provide comments to the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice regarding the antitrust implications of competitor collaborations is set to close on May 21, 2026. 

Shortly thereafter, the Agencies are expected to issue new guidance on this issue, which is likely to cover topics including data sharing, algorithmic pricing, and labor collaborations. The guidance is also expected to clarify the Agencies’ views on numerous types of competitor collaborations in the healthcare industry.

This new guidance will replace the “Antitrust Guidelines for Collaborations Among Competitors” that the Agencies issued in 2000 but withdrew in 2024. Until the Agencies issue the new guidelines, businesses should proceed carefully and seek legal counsel when considering competitor collaborations that may raise potential antitrust concerns.

Introduction

The time period for the public to provide comments to the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice regarding the antitrust implications of competitor collaborations is set to close on May 21, 2026. Thereafter, the Agencies are expected to draft new guidance on this issue based on public input. Businesses can expect updated guidelines in the coming months, providing greater clarity regarding how the Agencies are likely to approach joint ventures, research and development (R&D) agreements, and even simple information exchanges among competitors.

The Original Guidelines for Collaborations

For almost a quarter of a century, the “Antitrust Guidelines for Collaborations Among Competitors” (2000 Guidelines) provided companies with a blueprint for evaluating enforcement risks, understanding safe harbors, and analyzing the Agencies’ likely treatment of collaborations between competitors. This guidance included the concept of “safety zones”—situations where anticompetitive effects were unlikely enough that the arrangements were presumed lawful—for competitor collaborations in general and those specific to R&D. These safety zones greatly assisted the business community in assessing the Agencies’ likely response to proposed collaborations. 

However, in December 2024, the Agencies jointly announced the withdrawal of the 2000 Guidelines without proposing new guidelines at that time. Stating that new developments in federal case law, business arrangements, and technology rendered the 2000 Guidelines obsolete, the Agencies instructed that companies rely upon antitrust statutes and court decisions to determine the legality of proposed competitor collaborations.

New Collaboration Guidelines and the Public Comment Period

In late February, the Agencies announced the opening of a public comment period on new collaboration guidelines. Originally scheduled to end on April 24, the deadline for comment was extended to May 21 to give businesses and other interested parties additional time to provide input on the guidance. Some of the topics likely to be addressed in the new guidelines include the antitrust issues raised by vertical integration, roll-ups, joint licensing arrangements, conditional dealing with competitors, algorithmic pricing, data sharing, and labor collaborations. 

The healthcare industry will almost certainly be impacted by the new guidelines. Many healthcare companies rely heavily on R&D collaborations, for which the 2000 Guidelines had articulated a designated “safety zone.” Moreover, healthcare has already been the subject of significant discussion in the public comments submitted before the May 21 deadline.

Next Steps

After the close of the comment period, the Agencies will review and respond to the comments submitted. Thereafter, the Agencies are expected to publish new guidance on these issues to provide additional clarity for businesses assessing antitrust risk. Until then, companies should approach opportunities for collaboration with caution, seeking advice of counsel on how these activities may create enforcement exposure.