[Federal Register Volume 63, Number 169 (Tuesday, September 1, 1998)]
[Notices]
[Pages 46451-46452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23450]


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FEDERAL TRADE COMMISSION

[File No. 951-0097]


Merck & Co., Inc., et al.; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint that accompanies the consent agreement and the terms of the 
consent order--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before November 2, 1998.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and PA. Ave., NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:
William Baer or Willard Tom, FTC/H-394, Washington, D.C. 20580. (202) 
326-2932 or 326-2786.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of 
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby 
given that the above-captioned consent agreement containing a consent 
order to cease and desist, having been filed with and accepted, subject 
to final approval, by the Commission, has been placed on the public 
record for a period of sixty (60) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for August 27, 1998), on the World Wide Web, at ``http://www.ftc.gov/
os/actions97.htm.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room H-130, Sixth Street and Pennsylvania Avenue, NW., 
Washington, DC 20580, either in person or by calling (202) 326-3627. 
Public comment is invited. Such comments or views will be considered by 
the Commission and will be available for inspection and copying at its 
principal office in accordance with section 4.9(b)(6)(ii) of the 
Commission's Rules of Practice (16 CFR 4.9(b)(6)(ii)).

Analysis of Proposed Consent Order to Aid Public Comment

    The Federal Trade Commission has accepted, subject to final 
approval, an Agreement Containing Consent Order from Merck and Co., 
Inc. (``Merck'') and Merck-Medco Managed Care, LLC (``Medco''), (or 
``Proposed Respondents'') in resolution of antitrust concerns arising 
from Merck's acquisition of Medco.
    The proposed consent order (``Order'') has been placed on the 
public record for sixty (60) days for reception of comments by 
interested persons. Comments received during this period will become 
part of the public record. After sixty (60) days, the Commission will 
again review the Agreement and the comments received and will decide 
whether it should withdraw from the Agreement or make final the 
Agreement's proposed Order.
    The Commission has reason to believe that Merck's acquisition of 
Medco may substantially lessen competition in violation of Section 7 of 
the Clayton Act, as amended, 15 U.S.C. 18 and Section 5 of the FTC Act, 
as amended, 15 U.S.C. 45. The Order, if issued by the Commission, would 
settle the allegations of the proposed Complaint (``Complaint'').
    The Complaint in this matter alleges that Merck is engaged in the 
development, production and sale of pharmaceutical products, including 
Mevacor and Zocor, which are HMG-CoA reductase inhibitors used for 
treating high cholesterol; and Prinivil and Vasotec, which are ACE 
Inhibitors used for treating hypertension, high blood pressure and 
heart disease. It further alleges that Merck's subsidiary, Medco, is 
engaged in the business of providing pharmacy benefit management 
services to corporations, insurance companies, labor unions, third 
party payors, and other members of the healthcare industry.
    The Complaint further alleges that a relevant line of commerce 
within which to analyze the effects of this acquisition is the 
provision of pharmacy benefit management (``PBM'') services by national 
full-service PBM firms, and any narrower markets contained therein. 
Other relevant lines of commerce within which to analyze the effects of 
this acquisition are the development, manufacture and sale of 
pharmaceutical products in specific therapeutic

[[Page 46452]]

categories, and narrower markets contained therein (including, but not 
limited to, the markets for HMG-CoA reductase inhibitors and ACE 
Inhibitors). It further alleges that the relevant market for PBM 
services by national full-service PBM firms, as well as the relevant 
markets for pharmaceutical products in specific therapeutic categories, 
are moderately to highly concentrated.
    The Complaint further alleges that there are substantial barriers 
to entry into the relevant markets. Even if new entry were to occur, it 
would take a long time, during which time substantial harm to 
competition could occur.
    The Complaint further alleges that as part of its PBM services, 
Medco maintains a drug formulary, which is a listing, by therapeutic 
category, of ambulatory drug products that are approved for use by the 
U.S. Food & Drug Administration, and which is made available to 
pharmacies, physicians, third-party payors, and other persons, to guide 
in the prescribing and dispensing of pharmaceuticals. Merck 
pharmaceutical products are included on the Medco formulary. Medco 
provides a variety of other PBM services, including claims processing, 
drug utilization review, pharmacy network administration, mail service, 
and related services. Medco negotiates with pharmaceutical 
manufacturers, including Merck, concerning placement of drugs on the 
Medco formulary, rebates, discounts, prices to be paid for 
pharmaceutical products purchased pursuant to pharmacy benefit plans 
managed by Medco, and similar matters. Medco thereby influences the 
prices of pharmaceutical products and the availability of such products 
under the Medco pharmacy benefit plans.
    The Complaint further alleges that the effects of the acquisition 
of Medco by Merck may be substantially to lessen competition in the 
relevant markets in violation of Section 7 of the Clayton Act, as 
amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission 
Act, as amended, 15 U.S.C. 45, in the following ways, among others:
    (a) Products of manufacturers other than Merck are likely to be 
foreclosed from Medco's formularies;
    (b) Reciprocal dealing, coordinated interaction, interdependent 
conduct, and tacit collusion among Merck and other vertically 
integrated pharmaceutical companies will be enhanced;
    (c) Medco has been eliminated as an independent negotiator of 
pharmaceutical prices with manufacturers;
    (d) Incentives of other manufacturers to develop innovative 
pharmaceuticals will be diminished; and
    (e) Pharmaceutical prices are likely to increase and the quality of 
the pharmaceuticals available to consumers is likely to diminish.
    The Complaint further alleges that the acquisition of Medco by 
Merck violates Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, 
and Section 5 of the Federal Trade Commission Act, as amended, 15 
U.S.C. 45.
    The Order requires Merck to cause Medco to maintain and make 
available an Open Formulary, and provides that the Medco ``Universal 
Formulary'' complies with this provision. A copy of this formulary is 
appended to the Order. For the purposes of the Order, an open formulary 
is defined as a formulary that allows the inclusion of any ambulatory 
(i.e., non-hospital) prescription drug product which the Medco 
independent Pharmacy and Therapeutics Committee (``P&T Committee'') 
determines is appropriate for inclusion in such formulary.
    The Order requires that Medco appoint an independent P&T Committee 
to administer the formulary. This committee will make all decisions 
concerning the inclusion and exclusion of drugs on the Open Formulary. 
The Order sets forth the parameters under which the P&T Committee is to 
operate.
    The Order also requires that Merck cause Medco to accept all 
discounts, rebates or other concessions offered by any other 
manufacturer of pharmaceutical products on the Open Formulary, and 
requires that all such discounts, rebates and concessions be truthfully 
and accurately reflected in determining relative rankings of products 
on the Open Formulary. Nothing in the Order prohibits Medco from 
offering closed formularies as well as the Open Formulary.
    The Order also prohibits Merck and Medco from providing, 
disclosing, or otherwise making available to each other Non-Public 
Information, with certain exceptions for attorneys and auditors. This 
includes information concerning other persons' bids, proposals, 
contracts, prices, rebates, discounts, and or other terms and 
conditions of sale.
    The Order also requires Merck for five years to retain all 
documents, and to cause Medco to separately retain all documents, 
relating to the exclusion of any prescription drugs from the Open 
Formulary, any preference or ranking accorded to any prescription drug 
on the Open Formulary, and statements or indications of discounts, 
rebates or other concessions.
    The Order also requires Merck and Medco to make known the 
availability of the Open Formulary to persons who currently have a PBM 
service agreement or formulary agreement with Medco, and (for a period 
of five years) to prospective customers.
    The Order also compels Merck and Medco to fulfill certain standard 
notification, reporting and inspection requirements.
    The Order terminates seven years from the date it becomes final.
    It is anticipated that the Order would resolve the competitive 
problems alleged in the Complaint. The purpose of this analysis is to 
facilitate public comment on the Order, and it is not intended to 
constitute an official interpretation of the agreement and Order or to 
modify it in any way.
    The proposed consent order has been entered into for settlement 
purposes only, and does not constitute an admission by Proposed 
Respondents that the law has been violated as alleged in the complaint.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 98-23450 Filed 8-31-98; 8:45 am]
BILLING CODE 6750-01-M