94-29183. Eli Lilly and Company, Inc.; Proposed Consent Agreement With Analysis to Aid Public Comment  

  • [Federal Register Volume 59, Number 227 (Monday, November 28, 1994)]
    [Unknown Section]
    [Page ]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-29183]
    
    
    [Federal Register: November 28, 1994]
    
    
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    FEDERAL TRADE COMMISSION
    [File No. 941-0102]
    
    
    Eli Lilly and Company, Inc.; Proposed Consent Agreement With 
    Analysis to Aid Public Comment
    
    AGENCY: Federal Trade Commission.
    
    ACTION: Proposed consent agreement.
    
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    SUMMARY: In settlement of alleged violations of federal law prohibiting 
    unfair acts and practices and unfair methods of competition, this 
    consent agreement, accepted subject to final Commission approval, would 
    require, among other things, an Indiana producer of pharmaceutical 
    products to: Ensure that PCS Health Systems (PCS) maintains an open 
    formulary; appoint an independent Pharmacy and Therapeutics (P&T) 
    Committee of health care professionals to objectively evaluate drugs 
    for inclusion in the PCS open formulary; ensure that PCS accepts all 
    discounts, rebates or other concessions offered by Eli Lilly's 
    competitors for drugs that are accepted for listing on the open 
    formulary, and to accurately reflect such discounts in ranking the 
    drugs on the formulary; and, for five years, obtain Commission approval 
    before acquiring an interest in any firm that provides formulary 
    services to more than 2 million people in the United States. In 
    addition, the consent agreement would prohibit PCS and Eli Lilly from 
    sharing proprietary or other non-public information, such as price 
    data, from competitors whose drugs may be placed on a PCS formulary.
    
    DATES: Comments must be received on or before January 27, 1995.
    
    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:
    Michael McNeely, FTC/S-3308, Washington, DC 20580. (202) 326-2904.
    
    SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
    Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 2.34 of the 
    Commission's rules of practice (16 CFR 2.34), notice is hereby given 
    that the following 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. 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 
    Sec. 4.9(b)(6)(ii) of the Commission's rules of practice (16 CFR 
    4.9(b)(6)(ii)).
    
    Agreement Containing Consent Order
    
        The Federal Trade Commission (``Commission''), having initiated an 
    investigation of the acquisition by Eli Lilly and Company (``Lilly'') 
    of the PCS Health Systems (``PCS'') business of McKesson Corporation 
    (``McKesson''), and it now appearing that Lilly, hereinafter sometimes 
    referred to as ``proposed respondent,'' is willing to enter into an 
    agreement containing an Order to remedy the alleged lessening of 
    competition resulting from such acquisition, and providing for other 
    relief:
        It is hereby agreed by and between proposed respondent, by its duly 
    authorized officer and its attorney, and counsel for the Commission 
    that:
        1. Proposed respondent Lilly is a corporation organized, existing 
    and doing business under and by virtue of the laws of the State of 
    Indiana, with its office and principal place of business located at 
    Lilly Corporate Center, Indianapolis, Indiana 46285.
        2. Proposed respondent admits all the jurisdictional facts set 
    forth in the draft of complaint here attached.
        3. Proposed respondent waives:
        a. Any further procedural steps;
        b. The requirement that the Commission's decision contain a 
    statement of findings of fact and conclusions of law;
        c. All rights to seek judicial review or otherwise to challenge or 
    contest the validity of the Order entered pursuant to this agreement; 
    and
        d. Any claim under the Equal Access to Justice Act.
        4. This agreement shall not become part of the public record of the 
    proceeding unless and until it is accepted by the Commission. If this 
    agreement is accepted by the Commission it, together with the draft of 
    complaint contemplated thereby, will be placed on the public record for 
    a period of sixty (60) days and information in respect thereto publicly 
    released. The Commission thereafter may either withdraw its acceptance 
    of this agreement and so notify the proposed respondent, in which event 
    it will take such action as it may consider appropriate, or issue and 
    serve its complaint (in such form as the circumstances may require) and 
    decision, in disposition of the proceeding.
        5. This agreement is for settlement purposes only and does not 
    constitute an admission by proposed respondent that the law has been 
    violated as alleged in the draft of complaint here attached, or that 
    the facts as alleged in the draft complaint, other than jurisdictional 
    facts, are true.
        6. This agreement contemplates that, if it is accepted by the 
    Commission, and if such acceptance is not subsequently withdrawn by the 
    Commission pursuant to the provisions of Sec. 2.34 of the Commission's 
    rules, the Commission may, without further notice to the proposed 
    respondent, (1) issue its complaint corresponding in form and substance 
    with the draft of complaint here attached and its decision containing 
    the following Order in disposition of the proceeding, and (2) make 
    information public with respect thereto. When so entered, the Order 
    shall have the same force and effect and may be altered, modified or 
    set aside in the same manner and within the same time provided by 
    statute for other orders. The Order shall become final upon service. 
    Delivery by the U.S. Postal Service of the complaint and decision 
    containing the agreed-to Order to proposed respondent's address as 
    stated in this agreement shall constitute service. Proposed respondent 
    waives any right it may have to any other manner of service. The 
    compliant may be used in construing the terms of the Order, and no 
    agreement, understanding, representation or interpretation not 
    contained in the Order or the agreement may be used to vary or 
    contradict the terms of the Order.
        7. Proposed respondent has read the draft of compliant and order 
    contemplated hereby. Proposed respondent understands that once the 
    Order has been issued, it will be required to file one or more 
    compliance reports showing that it has fully complied with the Order. 
    Proposed respondent further understands that it may be liable for civil 
    penalties in the amount provided by law for each violation of the Order 
    after it becomes final.
    
    Order
    
    I
        It is ordered, That the following definitions shall apply herein:
        A. ``Respondent'' or ``Lilly'' means Eli Lilly and Company, its 
    predecessors, divisions, subsidiaries, affiliates, partnerships, joint 
    ventures, successors and assigns, and all directors, officers, 
    employees, agents and representatives of the foregoing.
        B. ``McKesson'' means McKesson Corporation, its predecessors, 
    divisions, subsidiaries, affiliates, partnerships, joint ventures, 
    successors and assigns, and all directors, officers, employees, agents 
    and representatives of the foregoing.
        C. ``PCS'' means PCS Health Systems, Inc., its predecessors, 
    divisions, subsidiaries, affiliates, partnerships, joint ventures, 
    successors and assigns, and all directors, officers, employees, agents 
    and representatives of the foregoing.
        D. ``Commission'' means the Federal Trade Commission.
        E. ``Formulary'' means a listing, by therapeutic category, of 
    branded and generic ambulatory drug products that are approved for use 
    by the U.S. Food & Drug Administration (``FDA''), and which is made 
    available to pharmacies, physicians, third-party payors, or other 
    persons involved in the healthcare industry, to guide in the 
    prescribing or dispensing of pharmaceuticals. An ``Open Formulary'' is 
    a formulary that allows the inclusion of any ambulatory prescription 
    drug product approved by the FDA for use in the United States, which 
    the P&T Committee (defined below) determines is appropriate for 
    inclusion in such formulary. For purposes of this Order, an Open 
    Formulary may provide truthful information stating or indicating the 
    relative costs or benefits of drugs on the formulary.
        F. ``Pharmacy Benefit Management Services'' or ``PBM Services'' 
    means services provided by a pharmacy benefits manager, such as 
    formulary services, negotiation of rebates or discounts from 
    pharmaceutical manufacturers, prescription claims processing, and drug 
    utilization review.
        G. ``Formulary Services'' means the provision, development, 
    establishment, management or maintenance of a formulary by a pharmacy 
    benefits manager. For purposes of this Order, ``management'' of a 
    formulary includes the negotiation and administration of rebate or 
    discount agreements with pharmaceutical manufacturers for drugs 
    included on a formulary.
        H. ``Lilly Non-Public Information'' means information not in the 
    public domain that is provided to Lilly in its capacity as a 
    pharmaceutical manufacturer by a supplier of PBM Services and that 
    concerns bids, proposals, contracts, prices, rebates, discounts, or 
    other terms or conditions of sale of any person other than PCS.
        I. ``PCS Non-Public Information'' means information not in the 
    public domain that is provided to PCS in its capacity as a supplier of 
    PBM Services by a manufacturer or seller of prescription drug products 
    and that concerns bids, proposals, contracts, prices, rebates, 
    discounts, or other terms or conditions of sale of any person other 
    than Lilly.
        J. ``Pharmacy and Therapeutics Committee'' or ``P&T Committee'' 
    means a group of healthcare professionals, such as doctors, 
    pharmacists, and pharmacologists, appointed for the purpose of 
    evaluating prescription drug products for inclusion on a formulary.
    II
        It is ordered, That:
        A. Within thirty (30) days from the date this Order becomes final, 
    Lilly shall cause PCS to maintain an Open Formulary. As of the date 
    this Order becomes final, the PCS ``Clinical Formulary and Prescribing 
    Guidelines 1994-1995,'' a copy of which is attached hereto as Appendix 
    A, on file at the Commission, shall be deemed an Open Formulary that 
    complies with this Paragraph II.A.
        B. Within thirty (30) days from the date this Order becomes final, 
    Lilly shall cause PCS to appoint an independent P&T Committee with the 
    authority and responsibility to maintain the Open Formulary required by 
    Paragraph II.A above. Such P&T Committee shall make all decisions 
    concerning the inclusion of drugs on such Open Formulary, the exclusion 
    of drugs from such Open Formulary, and the clinical and therapeutic 
    advice and evaluation concerning drugs on such Open Formulary, and 
    shall operate according to the following provisions:
        1. Such P&T Committee shall consist of at least nine (9) members, 
    all of whom shall be physicians, pharmacists, pharmacologists, or other 
    healthcare professionals.
        2. A majority of the P&T Committee shall consist of persons who are 
    not employees, officers, directors, or agents of, and who have no 
    financial interest in: (a) Lilly, (b) PCS, or (c) any other person who 
    has an ownership interest in Lilly or PCS. Such persons shall be 
    referred to herein as ``independent'' members of the P&T Committee.
        3. each independent member of the P&T Committee shall have one vote 
    on all decisions of the P&T Committee.
        4. All members of the P&T Committee who are employees, officers, 
    directors, or agents of, or who have a financial interest in, Lilly, 
    PCS, or any other person who has an ownership interest in Lilly or PCS, 
    shall not be entitled to vote on decisions of the P&T Committee.
        5. All independent members of the P&T Committee shall be appointed 
    for three-year terms, except that for the initial board, one-third of 
    the independent members shall be appointed for one-year terms, one-
    third shall be appointed for two-year terms, and the remaining 
    independent members shall be appointed for three-year terms. At the 
    expiration of their terms, or upon the occurrence of a vacancy, members 
    may be reappointed, or new members may be appointed, by a majority of 
    the then-appointed independent members of the P&T Committee.
        6. No independent member of the P&T Committee may be removed except 
    for cause by vote of a majority of the independent members of the P&T 
    Committee.
        7. In performing its responsibilities in maintaining the Open 
    Formulary, the P&T Committee shall utilize only criteria relating to 
    safety, efficacy, FDA approved indications, side effects, 
    contraindications, pharmacokinetics, patient compliance, physician 
    follow-up requirements, effect on emergency room visits and 
    hospitalizations, laboratory tests, cost, and similar objective 
    factors. Such P&T Committee shall give no preference to the products of 
    Lilly, or of any other person with an ownership interest in PCS, except 
    on the basis of such objective criteria.
        8. Lilly shall cause PCS to cover the costs and expenses of the P&T 
    Committee, and Lilly shall cause PCS to indemnify the P&T Committee 
    against any losses or claims of any kind that might arise out of its 
    performance of functions under this Order, except to the extent that 
    such losses or claims result from misfeasance, gross negligence, 
    willful or wanton acts, or bad faith.
        9. Such P&T Committee shall maintain written records, for five (5) 
    years from the date thereof, explaining the basis and rationale for all 
    P&T Committee decisions relating to the exclusion of any products from, 
    or the ranking of products on, the Open Formulary required by Paragraph 
    II.A.
        C. Lilly shall cause PCS to accept all discounts, rebates or other 
    concessions offered by any manufacturer, seller or distributor of 
    pharmaceutical products included by the P&T Committee on the Open 
    Formulary, and Lilly shall cause PCS to ensure that all such discounts, 
    rebates, or concessions are truthfully and accurately reflected in 
    determining relative rankings of products on the Open Formulary.
        D. Nothing in this Order shall preclude PCS from offering any 
    formulary other than the Open Formulary to any customer.
        E. Lilly shall cause PCS to provide a copy of this Order to each 
    member of the P&T Committee on or before the date of each such person's 
    appointment to such P&T Committee.
    III
        It is further ordered, that:
        A. Lilly shall not provide, disclose, or otherwise make available 
    to PCS any Lilly Non-Public Information; and
        B. PCS shall not provide, disclose, or otherwise make available to 
    Lilly any PCS Non-Public Information.
    IV
        It is further ordered, That Lilly shall retain all documents, and 
    shall cause PCS to separately retain all documents, that relate to (A) 
    the exclusion of any prescription drug products from the Open Formulary 
    required by Paragraph II.A above, (B) any preference or ranking 
    accorded to any prescription drug product on the Open Formulary 
    required by Paragraph II.A above, or (C) statements or indications of 
    discounts, rebates, or other concessions, as described in Paragraph 
    II.C above, for a period of five (5) years from the date such document 
    is created or received.
    V
        It is further ordered, That Lilly shall disclose the availability 
    of the Open Formulary as follows:
        A. Lilly shall cause PCS to disclose the availability of the Open 
    Formulary to all persons who currently have an agreement with PCS 
    concerning PBM services or concerning the inclusion of pharmaceuticals 
    on a formulary, by providing to each such person a letter containing 
    the following statement within ten (10) days after initiation of 
    contact between PCS and such person regarding renewal or extension of 
    such person's existing agreement with PCS:
    
        PCS maintains an Open Formulary that allows, subject to the 
    determination of an independent Pharmacy and Therapeutics Committee, 
    the inclusion of any ambulatory prescription drug product approved 
    by the FDA for use in the United States. This Open Formulary will be 
    provided to you upon request.
    
        B. For a period of five (5) years from the date this Order becomes 
    final, Lilly shall cause PCS to provide in writing the statement set 
    forth in Paragraph V.A above to each prospective customer of PCS at the 
    time of PCS's response to such prospective customer's request for 
    proposal, or at the time of PCS's initial written proposal to such 
    prospective customer, whichever occurs first.
    VI
        It is further ordered, That, for a period of five (5) years from 
    the date this Order becomes final, respondent shall not, without the 
    prior approval of the Commission, directly or indirectly, through 
    subsidiaries, partnerships, or otherwise:
        A. Acquire any stock, share capital, equity, leasehold or other 
    interest in any person, corporate or non-corporate, engaged in the 
    providing of Formulary Services in the United States, if such person 
    has more than two (2) million lives covered by its Formulary Services 
    in the United States;
        B. Acquire any assets used for, or previously used for (and still 
    suitable for use for), the providing of Formulary Services in the 
    United States from any person who has (or had within the two years 
    preceding such acquisition) more than two (2) million lives covered by 
    its Formulary Services in the United States; or
        C. Enter into any agreement, understanding, or condition with 
    McKesson or any other wholesaler of pharmaceutical products that Lilly 
    will sell or distribute pharmaceutical products bearing any brand or 
    trade name used by Lilly, in the United States or any part of the 
    United States, exclusively through such wholesaler.
    VII
        It is further ordered, That respondent shall notify the Commission 
    at least thirty (30) days prior to any proposed change in the corporate 
    Respondent such as dissolution, assignment, sale resulting in the 
    emergence of a successor corporation, or the creation or dissolution of 
    subsidiaries or any other change in the corporation that may affect 
    compliance obligations arising out of the Order.
    VIII
        It is further ordered, That:
        A. Within sixty (60) days after the date this Order becomes final, 
    Respondent shall submit to the Commission a verified written report 
    setting forth in detail the manner and form in which it intends to 
    comply, is complying, and has complied with this Order.
        B. One year (1) from the date this Order becomes final, annually 
    for the next nine (9) years on the anniversary of the date this Order 
    becomes final, and at other times as the Commission may require, 
    respondent shall file a verified written report with the Commission 
    setting forth in detail the manner and form in which it has complied 
    and is complying with this Order.
        C. Respondent shall include in its compliance reports a copy of the 
    Open Formulary required by Paragraph II.A above, and all written 
    communications, internal memoranda, and reports and recommendations 
    concerning compliance with the Order.
    IX
        It is further ordered, That, for the purpose of determining or 
    securing compliance with this Order, respondent shall permit any duly 
    authorized representative of the Commission:
        A. Access, during office hours and in the presence of counsel, to 
    inspect and copy all books, ledgers, accounts, correspondence, 
    memoranda and other records and documents in the possession or under 
    the control of respondent relating to any matters contained in this 
    Order; and
        B. Upon five days' notice to respondent and without restraint or 
    interference from it, to interview officers, directors, or employees of 
    respondent.
    X
        It is further ordered, That this Order shall terminate ten (10) 
    years from the date this Order becomes final.
    
    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 Eli Lilly and 
    Company (``Lilly'' or ``Proposed Respondent'') in resolution of 
    antitrust concerns arising from Lilly's proposed acquisition of PCS 
    Health Systems, Inc. (``PCS'') from McKesson Corporation 
    (``McKesson'').
        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 Lilly's acquisition of 
    PCS would 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 Lilly is engaged in the 
    development, production and sale of pharmaceutical products, including 
    Prozac, an antidepressant (specifically, a selective serotonin reuptake 
    inhibitor); Humulin, an injectable insulin; Ceclor, an oral antibiotic; 
    and Axid, an anti-ulcer product (specifically, an H2 antagonist). It 
    further alleges that through its subsidiary PCS, McKesson is engaged in 
    the business of providing pharmacy benefit management (``PBM'') 
    services to insurance companies, 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 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 categories, and narrower markets contained therein 
    (including, but not limited to, the markets for injectable insulin, 
    selective serotonin reuptake inhibitors, H2 antagonists, and anti-ulcer 
    drugs). 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 highly 
    concentrated.
        The Complaint further alleges that there are substantial entry 
    barriers 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, PCS 
    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. Lilly 
    pharmaceutical products are included on the PCS formulary. PCS provides 
    a variety of other PBM services, including claims processing, drug 
    utilization review, pharmacy network administration, and related 
    services. PCS negotiates with pharmaceutical manufacturers, including 
    Lilly, concerning placement on the PCS formulary, rebates, discounts, 
    prices to be paid for pharmaceutical products purchased pursuant to 
    pharmacy benefit plans managed by PCS, and other issues. PCS thereby 
    influences the prices of pharmaceutical products and the availability 
    of such products under the PCS pharmacy benefit plans.
        The Complaint further alleges that the Agreement and Plan of Merger 
    contains a Memorandum of Understanding (``MOU'') in which Lilly and 
    McKesson agreed to investigate closing Lilly's distribution centers and 
    having McKesson handle physical distribution of Lilly products to 
    wholesalers and possibly be the sole distributor of Lilly products. 
    Implementation of this MOU would force wholesalers to deal with 
    McKesson to obtain Lilly products or deny them access to Lilly 
    products.
        The Complaint further alleges that the effects of the proposed 
    acquisition of McKesson by Lilly 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 Lilly are likely to be 
    foreclosed from the PCS formulary;
        (b) Reciprocal dealing, coordinated interaction, interdependent 
    conduct, and tacit collusion among Lilly and other vertically 
    integrated pharmaceutical companies will be enhanced;
        (c) PCS will be eliminated as an independent negotiator of 
    pharmaceutical prices with manufacturers;
        (d) Incentives of other manufacturers to develop innovative 
    pharmaceuticals will be diminished;
        (e) Entry into the relevant markets may be more difficult because 
    it will require entry at more than one level;
        (f) Competition among drug wholesalers may be reduced because of 
    the competitive advantage that control over Lilly drugs will provide 
    McKesson; and,
        (g) The price of pharmaceuticals is likely to increase and the 
    quality of the pharmaceuticals available to consumers is likely to 
    diminish.
        The Complaint further alleges that the proposed acquisition of 
    McKesson by Lilly would, if consummated, violate 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. It further alleges that 
    the Agreement and Plan of Merger between Lilly and McKesson violates 
    section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 
    45.
        The Order requires Lilly to maintain an open formulary, and 
    provides that the existing open PCS formulary will comply 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 PCS independent Pharmacy and 
    Therapeutics Committee (``P&T Committee) determines is appropriate for 
    inclusion in such formulary.
        The Order requires that Lilly appoint an independent P&T Committee 
    to administer the open 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 Lilly cause PCS 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 Lilly from 
    offering closed formularies as well as the open formulary.
        The Order also prohibits Lilly and PCS from providing, disclosing, 
    or otherwise making available to each other Non-Public Information. 
    This includes information concerning other persons' bids, proposals, 
    contracts, prices, rebates, discounts, or other terms and conditions of 
    sale.
        The Order also requires Lilly to retain all documents, and cause 
    PCS to separately retain all documents, for five years, 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 Lilly to make known the availability of the 
    open formulary to persons who currently have a PBM service agreement of 
    formulary agreement with PCS, and (for a period of five years) to 
    prospective customers.
        The Order also prohibits Lilly, for a period of five (5) years from 
    the date the Order becomes final, from: Acquiring, without the prior 
    approval of the Commission, any stock, share capital, equity, leasehold 
    or other interest in any person, corporate or non-corporate, engaged in 
    the providing of Formulary Services in the United States, if such 
    person has more than two (2) million lives covered by its Formulary 
    Services in the United States; acquiring any assets used for, or 
    previously used for (and still suitable for use for), the providing of 
    Formulary Services in the United States from any person who has (or had 
    within the two years preceding such acquisition) more than two (2) 
    million lives covered by its Formulary Services in the United States; 
    or entering into any agreement, understanding, or condition with 
    McKesson or any wholesaler of pharmaceutical products that Lilly will 
    sell or distribute pharmaceutical products bearing any brand or trade 
    name used by Lilly, in the United States or any part of the United 
    States, exclusively through such wholesaler.
        The Order also compels Lilly to fulfill certain standard 
    notification, reporting and inspection requirements.
        The Order terminates ten 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 the respondent 
    that the law has been violated as alleged in the complaint.
    Donald S. Clark,
    Secretary.
    
    Joint Statement of Chairman Janet D. Steiger and Commissioner Christine 
    A. Varney in Eli Lilly/McKesson, File No. 941-0102
    
        We voted in favor of the proposed consent agreement with Eli 
    Lilly and Company (``Lilly'') in connection with its acquisition of 
    PCS Health Systems, Inc. from McKesson Corporation. We believe the 
    consent agreement offers immediate effective relief, avoids 
    protracted litigation, and represents the best non-structural relief 
    available to remedy the potential anticompetitive consequences of 
    the transaction. Moreover, the proposed consent achieves these goals 
    and allows potential efficiency gains to be realized.
        However, we remain concerned about the overall competitive 
    impact of vertical integration by drug companies into the pharmacy 
    benefits management market. Through monitoring this proposed order 
    and through analysis of these evolving markets, the Commission 
    intends to assess all the ramifications of vertical integration 
    here.
    
    Dissenting Statement of Commissioner Mary L. Azcuenaga
    
    Eli Lilly and Company, Inc., File No. 941-0102
    
        Today, the Commissioner accepts a consent order for public 
    comment that exudes a lack of conviction in the underlying theory of 
    competitive harm on which the order is based. The order does not 
    cure the competitive problems alleged in the complaint. Three of the 
    four primary provisions in the order are inadequate, and the fourth, 
    which addresses a memorandum of understanding between Lilly and 
    McKesson, is based on no colorable factual showing of a violation of 
    law. In addition, there is no justification for making the duration 
    of the order half that of other Commission orders. Finally, imposing 
    this order without addressing similar acquisitions raises a question 
    of evenhandedness and leaves unanswered the broader question of the 
    competitive effect of vertical integration in this industry.
        I dissent.
    
    [FR Doc. 94-29183 Filed 11-25-94; 8:45 am]
    BILLING CODE 6750-01-M
    
    
    

Document Information

Published:
11/28/1994
Department:
Federal Trade Commission
Entry Type:
Uncategorized Document
Action:
Proposed consent agreement.
Document Number:
94-29183
Dates:
Comments must be received on or before January 27, 1995.
Pages:
0-0 (None pages)
Docket Numbers:
Federal Register: November 28, 1994, File No. 941-0102