FTC Requires Divestitures and Imposes Conditions on Boston Scientific Corp.’s Acquisition of BTG plc
Medical device company Boston Scientific Corp. has agreed to divest certain assets to Varian Medical Systems to settle Federal Trade Commission charges that Boston Scientific’s proposed $4.2 billion acquisition of medical equipment and pharmaceutical supplier BTG plc would violate federal antitrust law.
The FTC alleges that, as proposed, Boston Scientific’s acquisition of BTG would harm consumers in the U.S. market for drug eluting beads, or DEBs, which are microscopic beads used to treat certain liver cancers. Interventional radiologists use DEBs, combined with chemotherapy drugs, in a procedure called transarterial chemoembolization. This procedure blocks the flow of blood to a liver tumor, causing it to shrink over time, while simultaneously slowly releasing a chemotherapy agent that also attacks the tumor.
Boston Scientific and BTG are the two largest suppliers of DEBs in the United States, according to the complaint. The complaint also alleges that new competition in this market is unlikely to occur in a timely manner to deter the anticompetitive effects of the proposed acquisition because of the length of time required for product development, FDA approval, and market adoption. Eliminating the head-to-head competition between BSC and BTG in this highly concentrated market would allow the combined firm to exercise market power unilaterally, resulting in higher prices, reduced innovation, and less choice for consumers, according to the complaint.
Under the proposed consent agreement, within 10 days after Boston Scientific’s acquisition of BTG closes, Boston Scientific is required to divest to Varian its DEB business, as well as its bland bead product line. Bland beads are used in another type of procedure to block the flow of blood to a liver tumor. According to the FTC, BSC’s bland bead business must be divested with its DEB business to ensure the divestiture’s effectiveness.
Further details about the consent agreement, which allows the Commission to appoint a monitor, are set forth in the analysis to aid public comment for this matter. The proposed order also allows the Commission to appoint a trustee in the event that Boston Scientific does not fully comply with its divestiture and other obligations as required.
The Commission vote to issue the complaint and accept the proposed consent order for public comment was 5-0. The FTC will publish the consent agreement package in the Federal Register shortly. Instructions for filing comments appear in the published notice. Comments must be received 30 days after publication in the Federal Register. Once processed, comments will be posted on Regulations.gov.
NOTE: The Commission issues an administrative complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $42,530.
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