Corporate Law Practice

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Tuesday, June 26, 2012

Technology transfer is not mandatory for FDI in Pharma

An inter-ministerial group set up to resolve issues on FDI cap in Pharma sector for brownfield investment has taken a decision to remove the condition of mandatory transfer of technology by the foreign investor to the target company. Brownfield investment means investment into an existing company. The group has however imposed following conditions:

1.     The level of generic medicines produced for domestic use (other than for exports) after FDI should not fall below the average level for the last five financial years preceding the induction of FDI  or the period since the date of commencement of production by the company. The word level will be deemed to mean the percentage of the total turnover of the pharma company and the total quantity of production of generic medicines;

2.      That the level of investment in research for “diseases relevant to India” expressed as a percentage of the total cost of production shall, after induction of FDI, increase by at least five percentage points over the average level for the last five financial years preceding the induction of FDI or the period since the commencement of production by the company. The condition has to be met within a period of three years of the induction of FDI.


It is pertinent to recollect that this inter-ministerial group was formed as there was inordinate delay in clearing of FDI proposal. Such delay was mainly attributed to the differences between health ministry and other departments. While health ministry wanted a strict policy, other departments recommended for a liberal regime. This difference caused delay in investment from major pharma companies such as Akorn Inc (the US), Chemo Espana (Spain) and Global Par Pharma (the US).

The group also agreed that instead of using the term generic the phrase “national list of essential medicines", which could be modified from time to time, should be used. The group further requires the health ministry to come out with some classification specifying diseases relevant to India.





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