Anti-Trust Policy Statement
The Diagnostic Marketing Association (DxMA), an association of executives from in vitro diagnostics companies, marketing agencies, and other key industry nonprofit organizations, recognizes and endorses the policies underlying the nation’s antitrust laws. It is the belief of the DxMA that competition is the fairest and most efficient mechanism of economic regulation. Accordingly, any activity that intentionally or unintentionally reduces competition or restrains trade is contrary to that belief and DxMA policy. In order to ensure that DxMA members, advisors and staff understand and comply with basic antitrust law and DxMA policy, the DxMA Board of Directors has adopted the following Antitrust Policy Statement.
Trade associations are subject to both federal and state antitrust laws. The most important antitrust statutes relating to an association’s activities are Section 1 of the Sherman Act and Section 5 of the Federal Trade Commission Act.
Section 1 of the Sherman Act prohibits “contracts, combinations, or conspiracies . . . in restraint of trade.” Since trade associations are by definition “combinations,” they may be particularly vulnerable.
The Sherman Act prohibits any understanding affecting the price of a product regardless of the purpose of the understanding. For example, if members of an association reach any form of an understanding or agreement concerning price, they cannot justify the understanding by showing that it will benefit consumers.
An association’s members and staff must also remember that the Sherman Act is a criminal conspiracy statute. If you are not an active participant - if you merely sit by at a meeting while the members of the association engage in an illegal discussion concerning price-fixing, you may be held criminally responsible, even though you said nothing during the discussion. Mere attendance at such a meeting may be sufficient to imply acquiescence in the discussion and thereby make the individual liable to as great a penalty as those who actively agreed to fix prices. Other common violations of the Sherman Act are boycotts or agreements to allocate markets.
Section 5 of the Federal Trade Commission Act prohibits “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.” Unlike the Sherman Act, the Federal Trade Commission Act reaches anticompetitive acts committed by single persons or companies whether or not there is any agreement or “combination”; like the Sherman Act, it also covers joint actions. The FTC has broad power to determine what constitutes an unfair method of competition or unfair or deceptive act or practice under any given circumstances.