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acquisitions citing the need for healthy competition in those industries. 74 Despite pleas from some outlets that healthcare markets are different and that strategically unified health and medical services are optimal, the FTC maintains that the antitrust laws nonetheless apply with equal force. 75 The FTC highlights:
[W]hen a merger or other form of collaboration may allow providers to demand higher fees through increased bargaining leverage, the antitrust laws are the appropriate mechanism for determining whether consolidation or collaboration, on balance, is more likely to result in higher costs without corresponding improvements in quality of care. And the risk of harm increases when integration or coordination involves a substantial portion of the competing providers in any particular service or specialty. 76
The FTC has specifically challenged a number of bio-pharma mergers and acquisitions identified in pre-merger notifications submitted to the agency. 77 In a recent annual report, the FTC notes that 6. 1 percent of the transactions set forth in pre-merger filings are in the chemical and pharmaceutical realm. 78 For example, the FTC position regarding the proposed 2008 acquisition of Taro Pharmaceutical Industries by Sun Pharmaceutical Industries was that the transaction “would be anticompetitive and would cause U.S. consumers to pay higher prices for three distinct generic formulations of the anticonvulsant drug carbamazepine” because “[b]oth companies either manufacture the relevant generic drug products and sell them in the United States, or are set to enter the U.S. market with competing products in the near future, pending regulatory approval.” 79 In order to proceed with the acquisition, the FTC required Sun to enter into a consent order to sell all rights and assets to the three anticonvulsant drugs to an India-based generic drug manufacturer. 80
74. See, e.g., Marina Lao et al., Not Just an Opinion: Competition Really is Key to Healthy Health Care Markets, FED. TRADE COMM’N (July 8, 2015, 9: 54 AM), https:// www.ftc.gov/news-events/blogs/competition-matters/2015/07/not-just-opinion-competition- really-key-healthy-health. 75. See Robert Pear, F. T.C. Wary of Mergers by Hospitals, N. Y. TIMES (Sept. 17, 2014), http://www.nytimes.com/2014/09/18/business/ftc-wary-of-mergers-by-hospitals-.html?_r=2. 76. Lao et al., supra note 74. 77. See generally EDITH RAMIREZ & WILLIAM J. BAER, FED. TRADE COMM’N & DEP’T OF JUSTICE, HART-SCOTT-RODINO ANNUAL REPORT: FISCAL YEAR 2013 (2013), available at https://www.ftc.gov/system/files/documents/reports/36th-report- fy2013/140521hsrreport.pdf. 78. Id. at 7. 79. FTC Challenges Sun Pharmaceuticals Purchase of Taro Pharmaceutical Industries, FED. TRADE COMM’N (Aug. 13, 2008), https://www.ftc.gov/news-events/press-releases/2008/ 08/ftc-challenges-sun-pharmaceuticals-purchase-taro-pharmaceutical. 80. Id.