AUTH/2806/12/15: Bayer v Mallinckrodt (part of Guerbet) — contrast injector “package deals” (No breach) | PMCPA Case

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Key facts

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Case number	AUTH/2806/12/15
Parties	Bayer plc v Mallinckrodt UK Commercial Ltd (now part of Guerbet)
Issue	Alleged provision of contrast injectors on long-term loan or as gifts linked to purchase of contrast media (package deals)
Complaint received	1 December 2015
Case completed	4 May 2016
Applicable Code year	2015
Clauses considered	Clause 2; Clause 18.1
Panel decision	No breach of Clause 18.1; No breach of Clause 2
Appeal	No appeal
Alleged equipment value	£20,000–£35,000 (as alleged by Bayer)
Deal structure described by company	Package deals mainly 2–3 years; equipment value set as a percentage of total consumables/contrast value; ownership transferred on delivery; customer could retain injector even if switching suppliers (per company account)

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Reviewed by Dr Anzal Qurbain (FFPM) — ABPI Final Signatory

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What happened

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Bayer complained that Mallinckrodt (radiological contrast media supplier) was offering contrast injection equipment (injectors) on long-term loan or as a gift to customers who agreed to purchase its contrast agent.
Bayer relied on a purchasing organisation document stating three suppliers (including Mallinckrodt) were offering the loan of injectors as part of a framework agreement based on defined spend through the suppliers’ contrast contracts.
Bayer alleged this amounted to a gift/benefit offered as an inducement, and that the value (said to be £20,000–£35,000) meant the overall transaction could not be “fair and reasonable”.
Bayer also alleged the conduct would bring discredit on the industry (Clause 2).
Mallinckrodt denied offering injectors on long-term/permanent loan and described its approach as time-limited package deals (mainly 2–3 years) structured using a “compliance calculator”.
Mallinckrodt said ownership of the injector transferred to the customer on delivery as part of the total package price (inclusive within pre-filled syringe pricing), and that the injector was necessary apparatus for administration.
The Panel noted inconsistencies in the template contract about when title passed (payment in full vs on delivery), and that there was no mechanism to recover the investment if volume commitments were not met (though termination for material breach existed).
The Panel also considered jurisdiction given Mallinckrodt’s acquisition by Guerbet (a non-member company that had agreed to comply with the Code) and treated the activity as ongoing at the time of complaint.

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Outcome

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No breach of Clause 18.1.
No breach of Clause 2.
The Panel considered the arrangements to be a bona fide package deal and not unfair or unreasonable overall.
No appeal.

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AUTH/2806/12/15: Bayer v Mallinckrodt (part of Guerbet) — contrast injector “package deals” (No breach)

Key facts

What happened

Outcome

Clauses

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