Congressmen to regulators: BMS-Celgene merger will stifle competition and raise drug prices

Biopharma experts predicting an M&A boom this year said one thing might thwart that surge of dealmaking: federal action on drug prices. If buyers can't charge what they want for the drugs they pick up in a merger, then the value of that deal could quickly erode, they said.

Bristol-Myers Squibb and Celgene will be the first companies to test whether the drug-price debate can indeed quash—or significantly hinder—a proposed deal.

U.S. Representatives Peter Welch, D-Vt., and Francis Rooney, R-Fla., said on Monday that they're challenging the Federal Trade Commission and Department of Justice to question BMS’ proposed $74 billion acquisition of Celgene, on the grounds that it will stifle competition, particularly in cancer, causing drug prices to rise and hurting consumers.

Because the merger would give BMS access to drugs like Celgene’s multiple myeloma blockbuster Revlimind, Welch and Rooney argued—products that either complement or compete with its own cancer treatments—competition in those categories would fall and BMS would have more leverage in price negotiations with insurers.

"The larger the company, the more it can use ‘rebate walls’ to block formularies' access to more affordable and or equally effective substitute products," they wrote in a letter to the regulatory agencies.

Welch and Rooney pointed to three past biopharma mergers to make their case that M&A in the industry hurts consumers. After Allergan merged with Actavis in a $70 billion deal in 2015, the new company raised prices four years in a row, "most recently by an average of 9.5% on its entire portfolio, 75 drugs in all," they said.

The congressmen also threw daggers at AbbVie for attempting to triple the price of Imbruvica following its $21 billion acquisition of Pharmacyclics, as well as Shire, which they blasted for adding $10,000 to the price of Oncaspar after acquiring its maker, Baxalta, for $32 billion.

BMS and Celgene are unfazed by the criticism. "This transaction creates a leading focused specialty biopharma company that is well positioned to address the needs of patients with cancer, inflammatory and immunologic disease and cardiovascular disease," the companies said in a statement. "We look forward to working with the appropriate regulatory authorities on their review."

And whether big mergers are really to blame for rising drug prices is open to debate. Plenty of companies are raising prices without a megamerger to fuel them. Just after the new year, Evercore ISI analyst Umer Raffat released a report fingering several other companies for raising prices. Biogen, for example, hiked the prices of three drugs by 2% to 6%, he reported. And Pfizer—which took the brunt of President Donald Trump’s ire over the pricing issue last year—had previously disclosed that it planned to jack up the prices of 41 products, with most of those taking 5% increases.

During the J.P. Morgan Healthcare Conference in San Francisco last week, CEO Giovanni Caforio made his case for the Celgene purchase, pointing out that it would bring the company six potential near-term product launches and a significantly expanded pipeline. "The deal is really about the science and innovation," he said.

Perhaps, but that won’t stop federal lawmakers from making the deal more about drug prices than anything else. In their letter to the FTC and DOJ, Welch and Rooney suggested the merger should be conditioned on a "hold harmless provision" that would prevent BMS from raising drug prices to finance the deal. "It should be shareholders, not consumers, taxpayers, and employers who pay for the merger," they wrote.

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