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The Competition Commission of India closes an information case regarding the non-marketing of a patented dietary supplement under Section 26(2) of the Competition Act, 2002. The informant alleges that multiple hospitals, companies, and pharmacies refuse to promote or sell the product named Protestin. The Commission observes that the submitted emails show business solicitation rather than a vertical agreement. The Commission decides that market players make independent purchase decisions based on commercial considerations. The Commission finds no anti-competitive conduct and dismisses the prayer for relief.
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COMPETITION COMMISSION OF INDIA
Case No. 01 of 2024
In Re:
Somnath Banerjee 133/B, Kankulia Road, Kolkata - 700029
Informant
And
Apex Lab 3rd Floor, Guindy, Chennai – 600032
Opposite Party No. 1
Neotia Hospital (Unit of Park Hospital) Rawdon Street, Mullick Bazar, Park Street area, Kolkata – 700017
Opposite Party No. 2
Anandolok Hospital D.K 73, Salt Lake City, Kolkata – 700009
Opposite Party No. 3
AMRI Hospital P-4 & 5, Block – A, Gariahat Road, Kolkata-700032
Opposite Party No. 4
Angel Nursing Home 68, A/1/1, Raja S.C. Mallick Road, Kolkata – 700092
Opposite Party No. 5
Medicine World Ranbo Behala
Opposite Party No. 6
Flipkart Health Plus
Opposite Party No. 7
PharmEasy
Opposite Party No. 8
Netmeds Pharmacy
Opposite Party No. 9
Sanjivani Pharmacy NB Marketing Pvt. Ltd., 576 Second Floor Mehrauli Badarpur Road, New Delhi – 110080
Opposite Party No. 10
Metro Pharma 128/1, Bidhan Sarani, Kolkata – 700004
Opposite Party No. 11
Garia Medical 400 C/ NSC Bose Road, Kolkata – 700047
Opposite Party No. 12
Matris Caram
Opposite Party No. 13
Federation of Medical and Sales Representatives' Associations of India (FMRAI) 60A, Charu Avenue, Kolkata – 33
Opposite Party No. 14
Casca Remedies Pvt. Ltd. Kuldeep Nagar, Ambala
Opposite Party No. 15
United Laboratories India Pvt. Ltd Aspiration Vintage Building, Petoria Street, Kolkata – 700071
Opposite Party No. 16
Dev Marketing Agency P-34, India Exchange, 1st Floor
Opposite Party No. 17
Burnet Pharmaceuticals (S.S. Twari)/IDMA 28/5, C.N. Road, 3rd floor, Kolkata – 700039
Opposite Party No. 18
North City Hospital 73 & 81/B, Bagmari Road, Ultadanga Hudco Stop, Kolkata – 700054
Opposite Party No. 19
R.G. Hospitals 33, Gariahat Road, Opposite – Jodhpur Park, Kolkata – 700031
Opposite Party No. 20
Medica Super Speciality Hospital 127, Eastern Metropolitan Bypass, Netai Nagar, Mukundapur, Kolkata – 700099
Opposite Party No. 21
Food Safety & Standards Authority, Eastern Regional Office (FSSAI) – Kolkata D.N.53, Block – Salt Lake, Sector – 5, Kolkata – 700091, Near TCS, Shri Sujoy Kumar – Director
Opposite Party No. 22
Mr. Tapan Kanti Rudra (IAS, West Bengal) Commissioner Food Safety & Additional Secretary Health & Family Welfare Department, Swasthya Bhawan, 6th Floor, G.N.-29, Sector – 5, Salt Lake, Kolkata – 700091
Opposite Party No. 23
West Bengal Health & Family welfare Department Principal Secretary, Swasthya Bhawan, G.N.-29, Sector-5, Salt Lake, Kolkata – 700091
Opposite Party No. 24
CORAM
Ms. Ravneet Kaur Chairperson
Mr. Anil Agrawal Member
Ms. Sweta Kakkad Member
Mr. Deepak Anurag Member
Order under Section 26(2) of the Competition Act, 2002
The present Information has been filed by Mr. Somnath Banerjee (‘Informant’), alleging contravention of Section 3(4) read with Section 3(1) of the Competition Act, 2002 (‘Act’), by several entities including hospitals, pharmaceutical companies, e-pharmacies, associations and certain government departments/authorities (collectively referred herein as ‘Opposite Parties’).
The Informant is stated to be a pharmacist and holder of Patent No 395566 granted on 27.04.2022 by the Patent Office, Govt. of India. As per the Patent Certificate, the invention i.e. ‘An Oral Rehydration Powder Composition Comprising Papain’ is stated to be a dietary supplement/ modified ORS, which improves digestion, reduces pain and inflammation etc. The said product, marketed under the brand name ‘Protestin’, is sold in sachets by Reserca Health Care Pvt. Ltd.
The Informant has alleged that ‘Protestin’ is not being marketed and promoted because of non-cooperation by private hospitals, Federation of Medical and Sales Representatives, online pharmacies, MNCs, distributors, doctors, exporters, Indian Drug Manufacturers’ Association, medicines shops etc. The Informant has also stated that while the product is reasonably priced, yet the same is not being promoted due to various reasons like the Food Safety and Standards Authority of India permission, presence of other brands etc. Further, the Informant lost Rs. 2-3 Lakhs because his product was not promoted by the companies/pharmacies/shops etc. The Informant has also alleged that marketing proposal have been sent to different organizations/companies but most of them did not reply back.
The Informant has submitted data with regards to Reserca Health’s sales from 01.03.2023 to 30.06.2023, which indicates that it sold 5,040 units in March, 6,320 units in April, 11,920 units in May and 7,200 units in June of 2023.
Based on the above, the Informant has alleged contravention of Section 3(4) read with Section 3(1) of the Act and prayed for the following reliefs:
The Informant has also sought the above-mentioned reliefs under Section 33 of the Act.
The Commission considered the matter in its ordinary meeting held on 13.03.2024 and decided to pass an appropriate order in due course. The Commission has perused the Information and it appears that the Informant is primarily aggrieved by non-marketing of its patented dietary supplement sold under the brand name ‘Protestin’ due to the alleged non-cooperation of the Opposite Parties. The Informant has stated that the alleged conduct of Opposite Parties is in contravention of Section 3(4) read with Section 3(1) of the Act.
The Commission observes that Section 3(4) of the Act requires existence of an agreement between vertically related players and that the said agreement has caused or is likely to cause appreciable adverse effect on competition in markets in India.
The Commission has perused certain emails sent by the Informant to several entities including some Opposite Parties and is of the view that these emails appear to have been sent for the purpose of soliciting business for his product and do not reveal existence of any agreement or arrangement as envisaged under the provisions of Section 3(4) of the Act.
The Commission is of the considered view that in absence of any apparent anti-competitive conduct, the decision of purchase or sale of a product and quantity thereof is driven by the commercial considerations of the market players. Therefore, it may not be desirable for the Commission to intervene in such cases where anti-competitive behaviour is not discernible.
Based on facts and circumstances of the present matter, the Commission observes that no such agreement has been shown to exist between the Opposite Parties that may be held to be anti-competitive in terms of the provisions of Section 3(4) of the Act. Accordingly, the Commission is of the view that there does not appear to be contravention of Section 3(4) read with Section 3(1) of the Act and the matter be closed under Section 26(2) of the Act forthwith. Consequently, no case for grant of reliefs as sought under Section 33 of the Act arises.
The Secretary is directed to communicate to the Informant, accordingly.
Sd/- (Ravneet Kaur) Chairperson
Sd/- (Anil Agrawal) Member
Sd/- (Sweta Kakkad) Member
Sd/- (Deepak Anurag) Member
Place: Delhi Date: 25/04/2024
