Drug manufacturer offers to pay NHS £8m to resolve CMA allegations of anti-competitive behaviour

If the Competition and Markets Authority concludes that competition law has been broken regarding Aspen’s fludrocortisone acetate 0.1mg product, the manufacturer may have to pay a £2.1m fine.

The Competition and Markets Authority has warned drug companies against using anti-competitive discount schemes, after investigating discounts offered by the company that manufactures Remicade.

A drug manufacturer has offered to pay the NHS £8m to resolve concerns around allegations of anti-competitive behaviour over the supply of a prescription drug.

The offer of payment from drug manufacturer Aspen, which is part of a proposed deal intended to resolve allegations against the company, is the first of its kind according to the Competition and Markets Authority (CMA).

The £8m offer comes as the CMA is continuing to investigate alleged anti-competitive arrangements concerning the company’s fludrocortisone acetate 0.1mg product, which is prescribed for the treatment of Addison’s disease, a rare adrenal insufficiency disorder.

The case hinges on allegations that Aspen entered into arrangements with two rival drug companies in 2016, paying them to stay out of the market, which then allowed the company to set its NHS price without competition.

Details of the proposed deal to resolve the case, which was drawn up after Aspen approached the CMA, are set out in the CMA’s ‘Notice of Intention to Accept Binding Commitments’, which is being consulted on until 2 September 2019.

The deal requires Aspen to admit that it was party to an illegal, anti-competitive agreement and commit to ensuring that there are at least two other UK suppliers of fludrocortisone in future.

Aspen would also have to pay a £2.1m fine if the ongoing CMA investigation concludes that competition law has been broken.

Andrea Coscelli, chief executive of the CMA, said: “The £8m Aspen has agreed to provide will save the NHS the time and expense of seeking damages in court.

“Importantly, Aspen has also committed to ensuring there are more competitors in this market, giving the NHS the opportunity to secure better value for UK taxpayers’ money in the future.”

The CMA is continuing to investigate the two other companies suspected of illegally participating in the arrangement.

A statement from Aspen said that offering the funds “does not consititue an admission of any wrongdoing”, adding that it had admitted liability for breaching Article 101 of the Treaty of the Functioning of the EU by “entering into an agreement to acquire a potential competitor Fludrocortisone with the consequence that the conclusion of this agreement resulted in anti-competitive behaviour”. 

It added: “The commitments offered by Aspen and the settlement discussions being undertaken between the CMA and Aspen reflect the group’s willingness to address the concerns raised by competition authorities into alleged anti-competitive conduct by Aspen. The group remains committed to the resolution of other outstanding investigations in the interest of patients.”

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Citation
The Pharmaceutical Journal, PJ, August 2019, Vol 303, No 7928;303(7928):DOI:10.1211/PJ.2019.20206955