FTC launches multilateral working group with EU, UK and Canadian antitrust authorities to take tougher stance on pharmaceutical mergers

Overview

On March 16, the U.S. Federal Trade Commission (FTC) launched a groundbreaking international working group aimed at “identify[ing] concrete and actionable steps to review and update the analysis of pharmaceutical mergers”.

The working group includes the antitrust authorities of the UK, EU and Canada, alongside the U.S. Department of Justice Antitrust Division, and State Attorneys General. The group will consider:

• How can current theories of harm be expanded and refreshed?
• What is the full range of a pharmaceutical merger’s effects on innovation?
• How should regulators consider conduct such as price fixing, reverse payments, and other regulatory abuses in the context of merger reviews?
• What evidence is needed to challenge a transaction based on new or expanded theories of harm?
• What types of remedies work in the cases to which those theories are applied?
• What have regulators learned about the scope of assets and characteristics of firms that make successful divestiture buyers?

Announcing the launch of the working group, FTC Acting Chair Rebecca Kelly Slaughter stated the agency “intend[s] to take an aggressive approach to tackling anticompetitive pharmaceutical mergers”. Slaughter has also indicated that the FTC will re-examine its conclusions from past pharmaceutical merger reviews to determine if mistakes were made.

Comment

Consolidation has been rife in the pharmaceutical sector, as established players seek new therapies and avenues of growth. Democrats have repeatedly raised concerns, including then-Commissioner Slaughter and Commissioner Rohit Chopra. Slaughter dissented in the Bristol-Myers Squibb-Celgene, AbbVie-Allergan and Mylan-Pfizer deals, arguing that the FTC’s approach “doesn’t encompass the entirety of competitive effects of these transactions”. Congresswoman Katie Porter also released a report earlier this year imploring the FTC to scrutinise these deals further.

A specific concern is that regulators’ existing toolkits may be inadequate to address anticompetitive effects of large pharmaceutical companies expanding and repositioning their product portfolios through the acquisition of smaller, innovative firms. The comparison with “Big Tech”, where so-called “killer acquisitions” have come under increased scrutiny by regulators on both sides of the Atlantic, is apt. In commenting on the establishment of the working group, Chief Executive of the UK Competition and Markets Authority Andrea Coscelli has stated that: “when large pharmaceutical companies decide to merge or to acquire innovative rivals, it is essential that competition authorities work together to protect consumers from any anti-competitive deals.”

This article was co-authored by Elaine Johnston and Shahab Uddin.