Pharmaceutical Antitrust Enforcement in the Trump Administration

Competition in the pharmaceutical industry has long been a priority for the federal agencies responsible for enforcing the antitrust laws: the FTC and the antitrust division of the DOJ. Public attention to prescription drug pricing has amplified this focus over the past several years, and federal and state antitrust enforcers have filed a series of high-profile law enforcement actions. With the change in Presidential administration, both the FTC and DOJ will be under new leadership. Although President Trump has yet to fill many of the key antitrust posts, the administration`s interim appointments, experience from past Republican administrations, and statements and actions by key individuals guiding antitrust policy for the transition team provide useful insights into the direction of antitrust enforcement. In this article, we provide practical guidance on how these changes can be expected to impact the pharmaceutical industry. While the new administration can be expected to scale-back antitrust enforcement in certain areas and shift enforcement priorities, we do not expect a ``hands off`` approach. Especially for the FTC`s review of pharmaceutical mergers and acquisitions and the DOJ`s investigation of potential criminal antitrust violations, we expect to see continuity as Republican appointees fill key leadership posts. We may see more significant changes in the enforcement approach to unilateral conduct by innovative firms, where we expect the new administration will be more cautious to impose antitrust liability and more deferential to patent rights.