The Multilateral Pharmaceutical Merger Task Force, a working group formed by the Federal Trade Commission (“FTC”), the Antitrust Division of the Department of Justice, State Attorneys General, and counterpart enforcement agencies in Europe and the UK, recently opened a comment period soliciting public input regarding how pharmaceutical mergers should be analyzed, including new potential theories of harm, market definition, and appropriate remedies. The comment period lasts until June 25, 2021.

In making the announcement, Acting Chair Rebecca Slaughter expressed her view that “[i]n the face of skyrocketing drug prices and ongoing concerns about anticompetitive conduct by pharmaceutical companies, we need to ensure that our investigations fully capture the potential impact on prices, quality, access, drug supply chain resilience, capital market investment, and innovation for new drugs.” Commissioner Rohit Chopra went a step further by chastising the Staff and the FTC’s track record, explaining that “[d]espite a wide range of concerns about anticompetitive abuses, the Federal Trade Commission has primarily pursued a pro-merger policy when it comes to the pharmaceutical industry.” Commissioner Chopra went on to state that “this pro-merger approach is not sensible, given the FTC’s mandate and the crises we face when it comes to drug prices.”

On the other hand, Commissioners Noah Phillips and Christine Wilson (the remaining Republican Commissioners) jointly praised the “ongoing efforts to assess competitive concerns that pharmaceutical mergers may raise.”  However, and in contrast to the views expressed by their colleagues at the FTC, they reiterated that “[t]o stop a merger, the government must articulate a viable theory of harm to competition that explains why that merger violates the law, and must proffer evidence to support that theory. Merely asserting a general opposition to large pharmaceutical mergers, however heartfelt, does not suffice.”

Strategic planning at the C-suite level should take into account the haze created by this failure on the part of the FTC Commissioners to see eye to eye on merger enforcement policy.

* * *

For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte:

E. John Steren
Member of the Firm

Patricia Wagner
General Counsel / Chief Privacy Officer

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.