Following a public comment period, the Federal Trade Commission has approved a final order settling charges that Fresenius Medical Care AG’s proposed $2 billion acquisition of NxStage Medical, Inc. likely would be anticompetitive.
The order requires Fresenius and NxStage to divest to B. Braun all assets and rights to research, develop, manufacture, market, and sell NxStage’s bloodline tubing sets, which are single-use plastic tube sets used during hemodialysis treatments.
According to the complaint, which was first announced in February 2019, the merger of Fresenius and NxStage likely would harm the U.S. market for bloodline tubing sets that are compatible with in-clinic hemodialysis machines that treat chronic renal failure. Fresenius and NxStage are two of only three significant suppliers of bloodline tubing sets used in open architecture hemodialysis machines in the United States. Fresenius and NxStage together control 82 percent of the market for bloodlines. The complaint alleged that the acquisition, as proposed, likely would result in substantial competitive harm to consumers in this market.
To ensure the divestiture is successful and to maintain continuity of supply, the order requires the parties to supply B. Braun with bloodline tubing sets for a limited time, while it establishes its own manufacturing capability. The Commission has agreed to appoint a monitor to ensure that Fresenius and NxStage comply with all of their obligations under the order.
If the Commission determines that B. Braun is not an acceptable buyer, or that the manner of the divestiture is not acceptable, the order requires the parties to unwind the sale of rights to B. Braun and then divest the products to an FTC-approved buyer or buyers within six months of when the order becomes final.
The Commission vote approving the final order was 3-2. (The staff contact is Lisa DeMarchi Sleigh, Bureau of Competition, 202-326-2535.)
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