Company or individual details
- Nestlé S.A.
- Nestlé Australia Pty Ltd000 011 316
- Duke Holdco Pty Ltd160 607 509
On 22 November 2012, the ACCC announced it had accepted undertakings from Nestlé S.A, Nestlé Australia Pty Ltd and Duke Holdco Pty Ltd (together, Nestlé) (Nestlé Undertaking) and Pfizer Australia Pty Ltd (Pfizer Undertaking) in relation to Nestlé S.A’s proposed acquisition of Pfizer Nutrition (the Proposed Acquisition).
The Nestlé Undertaking requires that Nestlé license Pfizer Nutrition’s Australian infant nutrition business brand portfolio to a purchaser to be approved by the ACCC. The Pfizer Undertaking requires that Pfizer provide transitional services and transfer key employees to the approved purchaser.
The ACCC considered that in the absence of the Nestlé Undertaking and Pfizer Undertaking, the Proposed Acquisition would have had the effect or have been likely to have the effect of substantially lessening competition in relation to the national market for the wholesale supply of Starter Infant Formula and Follow-On Milk (IFFO market) and national market for the wholesale supply of Growing-Up Milks (GUMs market).
The objective of the Nestlé Undertaking is to address the ACCC's competition concerns which would otherwise arise as a consequence of the Proposed Acquisition by placing obligations on Nestlé to:
- ensure the maintenance of a viable, effective, stand-alone, independent and long term competitor in the IFFO and GUMs markets, including by:
- requiring that Nestlé not re-introduce the divestiture products and not introduce products with the same or substantially the same formulations as the divestiture products to Australia for 20 years from divestiture
- requiring that Nestlé not disparage the approved purchaser or make reference to the divestiture business, divestiture brands or divestiture products for five years from completion of the Proposed Acquisition (subject to certain exceptions)
- ensure the approved purchaser has the necessary assets, rights and agreements to compete effectively in the IFFO and GUMs markets
- maintain the economic viability, marketability and competitiveness of the divestiture business prior to divestiture, including ensuring effective ring fencing measures are implemented
- hold its interest in the divestiture business separate from Nestlé’s other assets and businesses pending divestiture
- appoint an approved independent manager to manage the divestiture business from completion of the Proposed Acquisition to divestiture
- provide for the effective oversight of Nestlé’s compliance with the Nestlé Undertaking.
A copy and a description of the Pfizer Undertaking can be found as a separate entry on the Public Registers website. The Pfizer Undertaking is also Schedule 7 of the Nestle Undertaking.