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Completed Acquisition by First Milk Limited of a 15 Per Cent Stake in Robert Wiseman Dairies PLC

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Completed Acquisition by First Milk Limited of a 15 Per Cent Stake in Robert Wiseman Dairies PLC Completed acquisition by First Milk Limited of a 15 per cent stake in Robert Wiseman Dairies PLC The OFT's decision on reference under section 22 given on 7 April 2005. Full text of decision published 14 April 2005 Please note square brackets indicate information replaced by a range or excised at the request of the parties for reasons of commercial confidentiality. PARTIES 1. First Milk Limited (First Milk) is a farmer-owned dairy cooperative with approximately 3,600 members. First Milk procures raw milk from its members, collects it and then delivers it to milk processors such as fresh milk dairies, cheese producers and food processing factories. First Milk itself also has a number of processing facilities, including a fresh milk dairy in Glasgow, owned by Scottish Milk Dairies Limited (SMD), a wholly-owned subsidiary of First Milk. 2. Robert Wiseman Dairies PLC (Wiseman) is a public company whose shares are listed on the London Stock Exchange. The company produces fresh milk at processing facilities in Aberdeen, Glasgow, Manchester and Droitwich. Wiseman sources raw milk directly from farmers as well as from First Milk. Wiseman’s turnover in the last financial year was £474.5 million. TRANSACTION 3. On 17 November 2004 First Milk acquired approximately 15 per cent of the issued share capital of Wiseman. First Milk also has the right to nominate one non-executive director to the Wiseman board. 4. The statutory deadline, as extended, expires on 15 April 2005. 1 JURISDICTION 5. First Milk has acquired a 15 per cent stake in Wiseman. Other major shareholders are institutional investors (collectively accounting for around 7.5 per cent of shares (see note 1)) and the Wiseman family (accounting for approximately 47 per cent of shares).1 The First Milk board appointee will be the director with most experience of raw milk procurement, and it is expected that particular weight will be accorded to his views in relation to this activity (see note 2). First Milk and Wiseman have a continuing business relationship by way of a milk supply agreement; Wiseman currently accounts for approximately [10-20] per cent of First Milk’s total raw milk sales. 6. According to First Milk, the transaction delivers a degree of vertical integration into the liquid milk market and sets the scene for a developing relationship to create an efficient supply chain. The parties could therefore become more closely involved in the future; it is appropriate to have due regard to this possibility. 7. Taken together, and in the circumstances of this case, the OFT considers that the factors outlined above indicate that First Milk may be able materially to influence Wiseman’s policy and thus, as a result of this transaction it may be the case that First Milk and Wiseman have ceased to be distinct for the purpose of section 26(3) of the Enterprise Act 2002 (the Act). 8. The UK turnover of Wiseman exceeds £70 million, so the turnover test in section 23(1)(b) of the Act is satisfied. The OFT therefore believes that it is or may be the case that a relevant merger situation has been created. COMPETITIVE ASSESSMENT 9. The transaction may give First Milk the ability to materially influence the policy of Wiseman. The competition assessment in this case takes into account the maximum level of influence that could arise at this level. 10. The activities of the parties overlap in respect of the procurement of raw milk and the processing and supply of fresh milk. The effect of the transaction on competition in each of these areas is considered below. The parties do not overlap in the supply of raw milk, since all the raw milk procured by Wiseman is used in its own processing facilities. 2 Raw Milk Product market 11. Raw milk is produced by dairy farmers and is then transported to be processed into either fresh milk or dairy products such as cheese, milk powder, etc. Milk processors procure milk either directly from individual dairy farmers (direct supply), or from cooperatives (such as First Milk) or quota holding groups that collect milk from farmers and transport it to processors. 12. On the demand side, fresh milk processors cannot substitute other products for raw cows’ milk to produce fresh milk. On the supply side, switching from other farm activities to dairy farming is difficult and takes time since the latter requires specific plant, buildings, technical knowledge and land in an area with a suitable climate. 2 The appropriate frame of reference in this case is the procurement and supply of raw cows’ milk. Geographic market 13. In previous OFT decisions3, a 100 mile radius was considered, on average, to be a viable range for delivery of raw milk to processors and, as there are no clear geographic breaks, a chain of substitution is likely to operate across England, Scotland and Wales. The Competition Commission (CC) noted in the Scottish Milk Report4 that a considerable amount of trade in raw milk between Scotland and the rest of Great Britain occurred. Sufficient evidence was believed to exist to conclude that Scotland was part of a continuous chain of substitution linking it with the English sector. 14. The evidence gathered in the course of this inquiry was inconclusive on the question of whether or not there is a separate market for Scottish milk. Some customers contacted by us stated that consumers in Scotland do have a preference for Scottish milk; others indicated that the only (potential) barrier to sourcing milk from across the Scottish border is the cost of transport. The analysis below focuses on the region of overlap, therefore, there is no need to conclude on this point. 1 Source: www.wiseman-dairies.co.uk. 2 See OFT decision of 3 December 2004 on the completed acquisition by Dairy Farmers of Britain of Associated Cooperative Creameries and OFT decision of 26 February 2004 on the completed acquisition by Milk Link Limited, First Milk Limited and Dairy Farmers of Britain Limited of assets of United Milk Limited, namely the Westbury Milk processing plant. 3 See footnote 1. 4 Competition Commission report on the supply of fresh processed milk to middle-ground retailers in Scotland, December 2002, Cm 5002. 3 Horizontal issues 15. First Milk and Wiseman procure [10-20] per cent and [0-10] per cent respectively of raw milk purchased in Great Britain. In Scotland, First Milk procures [50-60] per cent of raw milk and Wiseman procures [20-30] per cent.5 16. As a cooperative, First Milk has undertaken to procure raw milk from its members. Since First Milk is owned by its members, it is therefore difficult to identify any incentives for First Milk to reduce the price it pays its members for raw milk, or to reduce the volume of milk that it takes from them. First Milk members contacted by the OFT – including First Milk members located in Scotland - stated that they did not expect that the price or volume of sales would be affected by the transaction. It is unlikely that, at the current level of influence, First Milk would be able to persuade Wiseman to reduce prices to the farmers who directly supply it, and in any case, such a strategy would lead merely to a displacement of direct suppliers from Wiseman to other processors; the effect on competition would be neutral. 17. Raw milk must be delivered to a processor within 24 hours, normally within a 100 mile radius. Therefore farmers are restricted by time and distance in accessing buyers for the raw milk they produce. In view of the high level of concentration, competition concerns could arise in Scotland if farmers were unable to supply raw milk to entities other than the parties (and if, due to market power downstream, lower raw milk prices were not passed on to consumers). However, there are a number of alternative outlets for raw milk in Scotland. These include Sorn, Milk Link, Claymore (a subsidiary of Arla), Graham’s Dairies and numerous other smaller processors. The recent expansion by Arla into Scotland will also provide alternative supply opportunities for Scottish farmers. While some farmers contacted by us in this inquiry stated that they did not have alternative buyers for their milk, this was not as a result of the transaction, and generally farmers welcomed the transaction. 18. The possibility of foreclosure of supply of raw milk to Wiseman’s competitors, including those in Scotland, is considered below. Barriers to entry and expansion 19. Third parties contacted by us in this inquiry indicated that they could increase raw milk production but they are unlikely to do so currently because of low returns and excess capacity in the raw milk market. This also indicates that it is unlikely 5 Estimates for 2004; source: Dairy Industry Newsletter ('DIN') website and First Milk estimate. 4 that arable farmers would switch to dairy farming, assuming that soil and climatic conditions allowed them to do so. Fresh Processed Milk Product market 20. The parties submit that the appropriate frame of reference is the market for the supply of all types of fresh processed milk to all types of customers in Great Britain. On the demand side, there is little substitutability between fresh milk and other products. On the supply side, processor evidence suggests that it is not easy to switch production from other types of dairy products to fresh milk without considerable investment and time. Segmentation by type of customer 21. In the Arla/Express Report6, the Competition Commission (CC) identified three different segments for liquid milk supply: • national multiples (larger supermarket chains); • middle ground customers – all customers who are neither national multiples nor doorstep customers; and • doorstep customers.
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