Multiple CMA investigations in the life sciences sector

The Competition and Markets Authority (“CMA”) currently has a large number of ongoing investigations in the “healthcare and medical equipment” and “pharmaceuticals” sectors. In this article we look briefly at some of these cases which are ongoing and in respect of which the CMA has published detailed information.

There are four cases investigating alleged competition law infringements in respect of which the CMA has issued a statement of objections:

• The CMA is investigating alleged anti-competitive agreements and abusive conduct in relation to hydrocortisone tablets. In March 2017, the regulator issued a statement of objections alleging that Concordia and Actavis UK have breached UK and EU competition law by entering into anti-competitive agreements in relation to the supply of hydrocortisone tablets in the UK. The CMA also alleges that Actavis UK abused its dominant position by inducing Concordia not to enter the market independently.
• The CMA is investigating a suspected breach of competition law related to discounts offered for Remicade. On 23 May 2017, the regulator issued a statement of objections alleging that MSD had breached UK and EU competition law by implementing a discount scheme in relation to the supply of Remicade to the NHS.
• On 21 November 2017 the CMA issued a statement of objections alleging that Concordia had breached UK and EU competition law by charging excessive and unfair prices in relation to the supply of liothyronine tablets in the UK.
• On 9 August 2017, the regulator issued a statement of objections alleging that Actavis UK breached UK and EU competition law by charging excessive and unfair prices in relation to the supply of hydrocortisone tablets.

In all four cases above, recipients of the statement of objections will now have the opportunity to respond to the allegations. The CMA will then decide in each case whether to proceed to infringement decisions and possible fines or to close their investigations.

The CMA is carrying out the following merger inquiries:

• The CMA is considering the completed acquisition by Tiancheng International Investment Limited of Biotest AG. A date for the launch of the merger inquiry is to be confirmed.
• The CMA is considering the completed acquisition by Medtronic plc of certain assets of Animas Corporation. A date for the launch of the merger inquiry is to be confirmed.
• On 18 January 2018, the CMA announced the launch of an inquiry into the anticipated merger between Derby Teaching Hospitals NHS Foundation Trust and Burton Hospitals NHS Foundation Trust. The regulator is considering whether the transaction would result in the creation of a relevant merger situation under the merger provisions of the Enterprise Act 2002 and, if so, whether the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services. The deadline for a phase 1 decision is 15 March 2018.

The CMA is currently investigating concerns that some care homes may be breaching consumer law. The regulator has opened a consultation on draft consumer law advice for UK care home providers for the elderly. This draft advice covers the charging of fees after a resident’s death and the treatment of their possessions.

To learn more about topical developments in the sector, you may wish to read our Life Sciences Update. The January 2018 publication includes an article about the new EU Medical Device Regulation and the EU In Vitro Diagnostics Regulation, which fundamentally change the way medical devices will be regulated going forward. You can find a link to the issue here.