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Law360 (April 20, 2020, 5:24 PM EDT) -- The U.S. Department of Justice will not challenge on antitrust grounds AmerisourceBergen Corp.'s plans to coordinate with other health care suppliers to distribute pandemic medicines nationally, the DOJ announced Monday, in the government's second such move in April.
The department's antitrust watchdog wrote to Pennsylvania-based AmerisourceBergen following an expedited review designed to make it easier for competing suppliers to pump products into the supply chain. The DOJ signaled it would not take enforcement action against the company's "collaborative efforts" to identify global supply openings, ensure quality and send out medications and other health care supplies to treat COVID-19.
"We commend AmerisourceBergen's efforts to assist the United States in responding to the COVID-19 pandemic through improved supply of medicines to those most in need," Makan Delrahim, the DOJ's antitrust chief, said in a statement Monday. "We also appreciate AmerisourceBergen's intention to comply with the antitrust laws, regardless of circumstances."
Delrahim said division staff worked expeditiously to resolve AmerisourceBergen's request for a business review letter within what he called an "ambitious seven-day target."
The DOJ issued the first review letter under the expedited process April 4, when the division said it wouldn't challenge a plan for several medical supply companies, including McKesson Corp., Cardinal Health Inc. and Henry Schein Inc., to work together to speed up the distribution of supplies needed to combat COVID-19. The response to AmerisourceBergen uses "the same analytical framework," the division said.
Antitrust enforcers said that AmerisourceBergen's efforts under review form part of the emergency response run by the Federal Emergency Management Agency and the Department of Health and Human Services to tackle urgent supply needs across the nation arising from the pandemic.
The DOJ said AmerisourceBergen is working on initiatives under the government's direction to help resolve supply challenges presented by the pandemic. The initiatives are "focused on facilitating the government's efforts to guide medications and other healthcare supplies to the places where they are needed most," the DOJ said.
That includes the distribution of hydroxychloroquine from the government's Strategic National Stockpile to health care providers. AmerisourceBergen is instructed on volumes and ship-to destinations, and then leverages its distribution network, the DOJ said.
The expedited, temporary review procedure was detailed in a joint statement from the DOJ and Federal Trade Commission on March 24.
Under that policy, companies seeking a DOJ Antitrust Division business review letter or FTC advisory opinion for coronavirus-related conduct "addressing public health and safety" will receive a response within seven calendar days of the agencies getting "all necessary information."
Antitrust and consumer protection agencies worldwide are scrambling to continue their functions amid the economic and social disruption. On top of normal workloads, they've been cracking down on coronavirus-related conduct like price-gouging of needed goods and creating pathways for certain kinds of conduct aimed at combating the disease and its economic impacts.
AmerisourceBergen filed its request for DOJ review on April 14, seeking assurance that its coronavirus care distribution efforts "do not in any way transgress the antitrust laws."
The request alludes to its work with McKesson and Cardinal, the only distinction being that AmerisourceBergen does not deal specifically with personal protective equipment, but rather, medicines and other supplies.
"Our collaborative efforts with McKesson, Cardinal and others are focused on facilitating the government's efforts to guide medications and other healthcare supplies to the places where they are needed most; in all other respects, AmerisourceBergen will continue to pursue its independent business strategies as before," the company said.
"The collaboration is limited only to coronavirus-related efforts and will only last for as long as such efforts are necessary for the welfare of our country," the letter said.
AmerisourceBergen did not have immediate comment Monday.
--Additional reporting by Matthew Perlman and Bryan Koenig. Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
