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ACM: no further investigation into arrangements regarding delivery of sleep apnea devices

The Netherlands Authority for Consumers and Markets (ACM) will not carry out a further investigation into possible anti-competitive arrangements between suppliers of sleep apnea devices (or CPAP devices). ACM sees that existing patients are not always able to exchange their old Philips device for another one straight away due to a temporary shortage of new devices. New patients do immediately get a new device. ACM also sees that there have been discussions between representatives of suppliers, patients, medical specialists, health insurers, and regulators with regard to the distribution of new devices. These discussions have led to an approach where the highest possible number of patients in the Netherlands are able to use a CPAP device. Considering the special circumstances, ACM will not carry out a further investigation into possible anti-competitive arrangements between suppliers.

What was the case about?

In mid-2021, Philips issued a statement in which it said that there may be health risks from using some of its CPAP devices. Philips is currently exchanging those devices for new ones, but this will take time. Some patients do not want to wait until it is their turn. They are asking their suppliers to exchange their devices for another one. However, suppliers do not always do so. ACM has received several reports that there may be arrangements between suppliers about this. Such arrangements may be in violation of competition rules.

What is ACM’s opinion?

Arrangements between suppliers about not giving existing patients other devices and distributing new devices to new patients only may be a violation of competition rules, unless those arrangements, for example, contribute to public health. As part of the preliminary investigation, ACM sat down with the trade association of suppliers, several manufacturers, the Dutch association for sleep apnea (ApneuVereniging), and the Dutch Health and Youth Care Inspectorate (IGJ). ACM found out, not just from Philips but also from other manufacturers, that too few devices will become available in the short term to meet today’s high demand. This is because of special circumstances, such as a worldwide shortage of chips, and transport and logistical problems as a result of the COVID-19 pandemic. Moreover, this is a temporary peak in demand, which will decline once Philips has completed the exchange process.

ACM sees that the suppliers involved patients, medical specialists, health insurers, and regulators to reach a solution that is in the interest of public health. In that context, discussions were held about an approach where existing patients would continue using their Philips devices temporarily until they could be exchanged, and that only new patients would receive new devices. With such an approach, a maximum number of patients would be able to use CPAP devices. For the group of patients as a whole, this will contribute, on balance, the most to public health. The IGJ reported earlier that, as far as we know right now, the use of existing Philips devices does not pose any health risks, and that immediate discontinuation of the use of the device could pose significant health risks to all users. That is why the IGJ had recommended that patients continue using the devices until Philips exchanges them. However, medical specialists can make a different assessment for individual patients.

In view of these circumstances, ACM will not carry out a further investigation into this matter at this time.

ACM and competition oversight 

ACM enforces compliance with competition rules among businesses, including in the health care sector. In that context, it looks at harmful behavior towards patients and insured, among other issues. If you have any questions about the applicability of competition rules in the health care sector, please submit your questions by sending an email to vragen [punt] zorg [at] acm [punt] nl. If you know of any illegal arrangements between companies, such as price-fixing agreements or market-sharing, please file a report with ACM by sending an email to info [at] acm [punt] nl.