Promoting competition and innovation in Canada's health sector, including the pharmaceutical industry, is a strategic priority for the Competition Bureau. In 2021, the Bureau announced that it had joined its counterparts in the United States, the United Kingdom and the European Union in launching an international working group. Though the group's main focus is mergers, the commissioner noted:
[W]e will continue to collaborate closely with our international partners to ensure we are staying on top of emerging issues – with respect to mergers as well as any type of potentially anticompetitive conduct. (Emphasis added.)
On 10 January 2022, the Bureau and Health Canada (Health Products and Food Branch) (HPFB) issued a joint notice about their collaboration in the following areas:
- general information sharing – namely:
- exchanging information on the mandate, role, and framework of each organisation to identify areas of mutual benefit; and
- sharing information on developments in these areas and on topics of mutual interest;
- cooperation on Bureau enforcement actions. In particular:
- upon request, HPFB provides information to the Bureau in the context of specific investigations; and
- HPFB refers issues to the Bureau where the Competition Act may apply;
- the Bureau identifies issues where aspects of the regulatory framework for pharmaceuticals may be impacting elements of competition, including innovation and choice, and collaborates on identifying potential changes to address these issues; and
- more generally, the Bureau provides any support or advice on designing laws, regulations and policies in a way that balances policy objectives, including access to safe and effective therapies, with competition considerations; and
- the Bureau shares findings relating to the impact of regulatory frameworks on competition in the context of access to medicines. In particular:
- HPFB provides relevant feedback to the Bureau on competition-related issues that impact access to medicines for Canadians.
The Bureau has considered a myriad of issues in the pharmaceutical industry. In the past few years alone, it has considered issues including Canadian reference products and risk management plans (discussed further in the joint notice), biosimilars and prohibitions against off-label use in procurement contracts. The Bureau has also considered numerous issues in the broader healthcare sector beyond pharma.
Given the Bureau's interest in healthcare, those in the industry (especially the pharmaceutical industry) will want to keep potential antitrust considerations in mind when engaging in any activity.
For further information on this topic please contact Alice Tseng at Smart & Biggar by telephone (+1 416 593 5514) or email ([email protected]). The Smart & Biggar website can be accessed at www.smartbiggar.ca.