The American Antitrust Institute filed a comment on December 14, 2020 opposing the Federal Trade Commission’s (FTC’s) proposed Consent Agreement in the Matter of Pfizer Inc., Upjohn Inc., Viatris Inc., Mylan N.V., Utah Acquisition Sub Inc. (File No. 191-0182). AAI’s comment explains that the remedies contained in the Consent Agreement will not fully restore competition lost by the proposed merger of Pfizer and Mylan. AAI urged the Commission to withdraw the Consent Agreement and move instead to enjoin the proposed merger in order to protect competition and consumers, who depend on access to affordable, live-saving medications. These medications include those designed to treat a wide range of conditions, including hypertension, high cholesterol, congestive heart failure, bacterial conjunctivitis, uterine bleeding, seizures, hypothyroidism, intestinal ulcers, and smoking cessation.
AAI filed its recent White Paper, From Competition to Conspiracy: Assessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector, in support of its comment. The AAI White Paper provides empirical evidence of the harmful effects of the FTC’s 25-year policy of settling virtually all highly concentrative horizontal pharmaceutical mergers with consent orders containing divestitures, rather than seeking full-stop injunctions. The effect of the Commission’s policy has been to create a pharmaceutical industry landscape that includes: (1) highly concentrated pharmaceutical markets; (2) the “swapping” of assets within a relatively small group of large and increasingly powerful firms that have engaged in serial M&A and purchases of divested assets in other mergers; (3) failed divestitures in past generic pharmaceutical mergers, as the FTC’s own evidence shows; and (4) conspiracies to fix generic drug prices or allocate customers that are the subject of ongoing federal, state, and private civil litigation and federal criminal indictments.
