[Federal Register Volume 68, Number 198 (Tuesday, October 14, 2003)]
[Notices]
[Pages 59183-59185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25903]


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FEDERAL TRADE COMMISSION

[File No. 031 0064]


Koninklijke DSM N.V., 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 October 23, 2003.

ADDRESSES: Comments filed in paper form should be directed to: FTC/
Office of the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW, 
Washington, DC 20580. Comments filed in electronic form should be 
directed to: [email protected], as prescribed in the 
Supplementary Information section.

[[Page 59184]]


FOR FURTHER INFORMATION CONTACT: Jeffrey Perry, FTC, Bureau of 
Competition, 600 Pennsylvania Avenue, NW, Washington, DC 20580, (202) 
326-2331.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), 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 thirty (30) 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 September 23, 2003), on the World Wide Web, at ``http://www.ftc.gov/os/2003/09/index.htm.'' A paper copy can be obtained from 
the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, 
Washington, DC 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. Comments filed in paper form should 
be directed to: FTC/Office of the Secretary, Room 159-H, 600 
Pennsylvania Avenue, NW, Washington, DC 20580. If a comment contains 
nonpublic information, it must be filed in paper form, and the first 
page of the document must be clearly labeled ``confidential.'' Comments 
that do not contain any nonpublic information may instead be filed in 
electronic form (in ASCII format, WordPerfect, or Microsoft Word) as 
part of or as an attachment to e-mail messages directed to the 
following e-mail box: [email protected]. Such comments 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 Agreement Containing Consent Orders To Aid Public Comment

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an Agreement Containing Consent Orders (``Consent 
Agreement'') from DSM N.V. (``DSM'') and Roche Holding AG (and its 
ultimate parent entity) (``Roche'') which is designed to remedy the 
anticompetitive effects of the acquisition of Roche's Vitamins and Fine 
Chemicals division (``RV&FC'') by DSM. Under the terms of the Consent 
Agreement, the companies would be required to divest DSM's phytase 
business to BASF AG (``BASF''). The divestiture will take place no 
later than ten business days from the date on which DSM closes its 
proposed acquisition of RV&FC.
    The proposed Consent Agreement has been placed on the public record 
for thirty days for receipt of comments by interested persons. Comments 
received during this period will become part of the public record. 
After thirty days, the Commission will again review the proposed 
Consent Agreement and the comments received, and will decide whether it 
should withdraw from the proposed Consent Agreement or make final the 
Decision and Order (``Order'').
    Pursuant to a Share and Asset Purchase Agreement dated February 10, 
2003, and amendments thereto, DSM proposes to acquire certain voting 
securities and assets from Roche Holding AG that together constitute 
Roche's Vitamins and Fine Chemicals division in a transaction valued at 
approximately $1.9 billion. The Commission's Complaint alleges that the 
proposed acquisition, if consummated, would constitute a 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 
worldwide market for the research, development, manufacture, and sale 
of the feed enzyme phytase. The proposed Consent Agreement will remedy 
the alleged violations by replacing the competition in the phytase 
market that would otherwise have been eliminated by the proposed 
acquisition.
    Phytase is an enzyme added to poultry and swine feed to promote the 
digestibility of phosphorous and other nutrients that are vital to 
efficient livestock production. Without the addition of phytase, 
monogastric (i.e. single-stomach) animals like pigs and chickens lack 
the ability to digest much of the phosphorous contained in animal feed. 
The phosphorous that is unavailable for digestion simply passes through 
the livestock undigested and is ultimately excreted in the manure. By 
``unlocking'' this phosphorous for digestion, phytase has the dual 
benefit of ensuring that the animals receive the benefit of these vital 
nutrients, while at the same time reducing the environmental impact 
caused by runoff from livestock production. Given its unique 
advantages, as well as the significant cost savings associated with 
using phytase, it is highly unlikely that phytase customers would 
switch to any other method of supplementing phosphorous in animal feed, 
even if the prices of phytase were to increase significantly.
    The worldwide market for phytase is highly concentrated. DSM, 
together with its alliance partner, BASF, pioneered the phytase market 
in 1996, and today remains the largest supplier of phytase in the 
world, with 2002 sales of approximately $80 million. Roche, with its 
alliance partner Novozymes, is the only significant competitor to the 
DSM/BASF alliance, with 2002 phytase sales of approximately $59 
million. Together, these two competing alliances dominate the phytase 
market, controlling over 90% of the $150 million worldwide market for 
phytase.
    The proposed acquisition would have a significant adverse effect on 
competition in the worldwide market for phytase. Prior to this 
acquisition, the DSM/BASF and Novozymes/Roche alliances competed 
vigorously for sales in the growing phytase market, resulting in 
substantial price discounting for phytase customers. Each alliance also 
invested significant resources in research and development efforts 
designed to improve its own products, in order to keep pace with 
similar investments being made by the other alliance. The proposed 
acquisition would link these two, previously independent, alliances, 
enabling them to coordinate their actions and eliminate the head-to-
head competition between the only two significant competitors in the 
worldwide phytase market. In doing so, the proposed acquisition would 
allow DSM to exercise market power, thereby increasing the likelihood 
that phytase customers would be forced to pay higher prices and that 
innovation and product quality in this market would suffer.
    Entry into the phytase market is difficult, time consuming, and 
ultimately unlikely to deter or counteract the competitive effects 
likely to result from the acquisition. Any company attempting to enter 
the phytase market faces serious obstacles in developing a phytase 
enzyme that does not infringe the various patents held by the market 
incumbents. This development process alone generally takes three to ten 
years, even for an experienced enzyme producer. In addition, the FDA 
approval process in the United States can take at least one to two 
years, and regulatory approval in Europe generally takes even longer. 
There are significant economies of scale associated with phytase 
production, and because sales in the United States and Europe each 
account for a significant portion of the total phytase market, it is

[[Page 59185]]

difficult, or impossible, for a potential entrant to achieve viable 
scale until approvals are obtained in those two jurisdictions. Finally, 
the process of convincing customers to switch to a new, untested, 
phytase enzyme is a difficult and lengthy one, often requiring customer 
validation testing that can take up to two additional years.
    The proposed Consent Agreement effectively remedies the 
acquisition's anticompetitive effects in the worldwide market for 
phytase by requiring DSM to divest its phytase business to BASF no 
later than ten business days after DSM closes its proposed acquisition 
of RV&FC. This business consists of, among other things, phytase 
related intellectual property, phytase scientific and regulatory 
material, phytase manufacturing technology, books and records, and 
other assets used in the research, development, manufacturing, 
marketing and sale of phytase. BASF is well-positioned to take over 
these assets and become an independent competitor in the phytase 
market. As DSM's phytase alliance partner, BASF already has primary 
responsibility for marketing and selling the phytase enzyme produced by 
DSM, and customers already associate this product with BASF, not DSM. 
Further, BASF already has intimate knowledge of DSM's research, 
development, and manufacturing efforts related to phytase, and is well-
positioned to take over these responsibilities. Finally, BASF poses no 
separate competitive concern as an acquirer of the phytase assets. For 
these reasons, the Commission is satisfied that BASF is a well-
qualified purchaser of the divested assets.
    The proposed Consent Agreement contains several provisions designed 
to ensure that the divestiture is successful. In order to reduce or 
eliminate any delay in pending research projects, the Consent Agreement 
requires that DSM provide technical assistance with ongoing research 
projects at BASF's request for a period of six months while these 
projects are being transferred to BASF. The Consent Agreement further 
requires DSM to contract manufacture phytase, at BASF's request, for up 
to two years. This provision is designed to eliminate any delay or 
interruption in BASF's ability to serve customers in the phytase 
market. In addition, the Consent Agreement requires DSM to provide BASF 
with the opportunity to enter into employment contracts with certain 
key employees, and requires DSM to provide certain employees with 
financial incentives to accept employment with BASF. For a period of 
one year, the Consent Agreement also prohibits DSM from hiring any BASF 
employee with responsibilities related to phytase. Finally, the Consent 
Agreement establishes firewalls designed to prevent information 
relating to the DSM/BASF phytase business from flowing to the 
Novozymes/Roche alliance.
    To preserve the full economic viability, marketability, and 
independence of the phytase assets pending divestiture, the Consent 
Agreement includes an Order to Hold Separate and Maintain Assets. This 
Order contains a number of provisions designed to ensure that the 
viability and competitiveness of the divested assets are not diminished 
prior to divestiture. Pursuant to this Order, the Commission has 
appointed KPMG, LLP as Interim Monitor to oversee the asset transfer 
and to ensure that DSM is expeditiously complying with its obligations 
under the Consent Agreement. The KPMG team is headed by John Ellison, 
who has over 30 years of experience in auditing and investigative work, 
and has acted as Monitor in several other divestitures for the European 
Commission. Mr. Ellison is supported by knowledgeable personnel, 
including a leading technical expert in the field of enzymes.
    In order to ensure that the Commission remains informed about the 
status of the pending divestiture, and about efforts being made to 
accomplish the divestiture, the Consent Agreement requires DSM to 
submit a status report to the Commission within thirty days after the 
Order becomes final, and every thirty days thereafter until DSM has 
fully complied with the Commission's Order.
    The purpose of this analysis is to facilitate public comment on the 
proposed Consent Agreement, and it is not intended to constitute an 
official interpretation of the proposed Consent Agreement or to modify 
its terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 03-25903 Filed 10-10-03; 8:45 am]
BILLING CODE 6750-01-P