Proposals for a joint approach to the analysis of pharmaceutical industry mergers are under way. This sees the European Commission, the US Federal Trade Commission, the Department of Justice Antitrust Division and Offices of State Attorneys General, the Canadian Competition Bureau and the UK Competition and Markets Authority forming a working group to develop a coordinated approach.
The aim is to identify concrete and actionable steps to review and update the analysis of pharmaceutical mergers, and address perceived harms around price increases and anti-competitive conduct.
Areas such as the impact of mergers on prices, quality, access, drug supply chain resilience, capital market investment, and innovation for pharmaceutical products are within scope, with the aim of coordinated development of future policy and enforcement.
There is still time to contribute to this phase of the project, currently focusing on the following broad questions:
- What theories of harm should enforcement agencies consider when evaluating pharmaceutical mergers, including theories of harm beyond those currently considered?
- What is the full range of a pharmaceutical merger’s effects on innovation? What challenges arise when mergers involve proprietary drug discovery and manufacturing platforms?
- In pharmaceutical merger review, how should we consider the risks or effects of conduct such as price setting practices, reverse payments, and other ways in which pharmaceutical companies respond to or rely on regulatory processes?
- How should we approach market definition in pharmaceutical mergers, and how is that implicated by new or evolving theories of harm?
- What evidence may be relevant or necessary to assess, and if applicable, challenge a pharmaceutical merger based on any new or expanded theories of harm?
- What types of remedies would work in the cases to which those theories are applied?
- What factors, such as the scope of assets and characteristics of divestiture buyers, influence the likelihood and success of pharmaceutical divestitures to resolve competitive concerns?
Comments should be submitted to the FTC by 25 June 2021.