Drug firm Aspen has offered to settle an investigation with the UK Competition Markets Authority (CMA) by paying the National Health Service (NHS) GBP 8 million in compensation. A pay-out of this nature is highly unusual and reduces the prospect of a long-running court battle over damages.
The CMA has been investigating two arrangements that Aspen entered into with rival pharmaceutical companies in 2016 for the supply of fludrocortisone acetate 0.1 mg tablets. Fludrocortisone is a life-saving medicine used to treat primary or secondary adrenal insufficiency (also known as Addison's Disease) and is paid for by the NHS. The CMA investigations concerned a breach of EU and UK competition law by Aspen by its paying of competitors to stay out of the market, which left Aspen as the only supplier of fludrocortisone and allowing it to set prices above competitive levels.
In November 2015, competitor Tiofarma obtained marketing authorisation for ambient storage fludrocortisone. In October 2016, Aspen acquired from Tiofarma the worldwide rights over ambient storage fludrocortisone. It also entered into a non-compete agreement and a supply agreement with Tiofarma, under which Tiofarma agreed to supply ambient storage fludrocortisone to Aspen and Aspen agreed to purchase all its requirements of ambient storage fludrocortisone only from Tiofarma for a period of five years. As a result of the agreement reached with Tiofarma, the CMA was concerned that Aspen had eliminated the threat of competition for ambient storage fludrocortisone and likely extended its position as sole UK supplier of fludrocortisone tablets.
The proposed commitments package offered to the CMA by Aspen includes the following:
- an admission that Aspen was party to an historic market sharing agreement
- the divestment of Aspen's UK rights over ambient storage fludrocortisone
- the reintroduction and commercialisation of cold storage fludrocortisone in the UK
- a compensation payment of GBP 8 million to the NHS to address the CMA’s concerns that, as a result of Aspen’s conduct, the NHS overpaid for fludrocortisone
- an agreement to pay a maximum fine of GBP 2.1 million once the CMA has concluded its investigation
Following a public consultation, the CMA is expected to decide whether to accept Aspen's proposed commitments in September/October.
There remains a number of open investigations before the CMA in relation to possible antitrust abuses in the pharmaceutical sector.