On February 11 [2026], Law No. 10838, titled "Law for the Enhancement and Promotion of Competition in the Medicines Market" (Ley de Fomento y Promoción de la Competencia en el Mercado de Medicamentos), was published. Its purpose is to “...promote people's access to medicines within the private sector through the promotion of measures that help improve competition, strengthen consumer protection tools, and lower prices, in order to guarantee Costa Ricans' right of access to health through the following objectives.”

This represents yet another attempt to lower the price of medicines in our country. Previous attempts made by the government, including the regulation of profit margins, have failed to yield results. This Law contains seven chapters and addresses several topics that hold a significant incidence on the medicines market and, consequently, on prices. Among other things, the Law seeks to streamline the registration of sanitary permits through the harmonization of sanitary registrations for medicines that are registered before a regulatory authority recognized by the WHO and included in the WLAs (WHO Listed Authorities) list under categories B, C, or BC, or otherwise with a regional reference or Level IV regulatory authority according to the Pan American Health Organization; to permit parallel importations by both private wholesale distributors (droguerías) and the CCSS and INS; to mandate the duty of physicians to inform patients whenever generic equivalents that are therapeutic substitutes to the prescribed medicine are available; to create permanent information mechanisms regarding market prices; to establish a commission for regulating the entry prices of imported products; and to obligate COPROCOM to conduct a medicines market study every two years.

All of these measures affect competition within the medicines market, but the manner in which they are regulated will not necessarily result in lower medicine prices in our country. Each of them deserves a deep and detailed analysis. For instance, the National Commission on Medicine Prices (Comisión Nacional de Precios de Medicamentos) created under Article 15 will face challenges related to its integration and operation, the methodology it must develop, and, above all, ensuring that the price regulation of imported products does not generate a shortage of those goods, leading to an even worse outcome for consumers.

However, on this occasion, we will address another topic covered by the Law, which is the regulation of certain monopolistic practices within the medicines market. This involves an authorization to engage in joint negotiations, alongside the prohibition of discrimination in granting volume discounts, exclusivity contracts, and tying arrangements (ventas atadas) in the medicines market.

Article 10 of the Law authorizes wholesale distributors to sell and conduct negotiations either individually or jointly with pharmacies requiring supply. This provision, although seemingly well-intentioned, is perplexing. One of the problems faced by medicines markets is the power held by manufacturers of original products, most of whom are located outside our country, leaving very little that we can do from here. In many countries, the distribution level (droguerías) is also highly concentrated. In our country, although there are not many wholesale distributors, they do compete against each other with certain intensity—an indication of which is the decrease in exclusivity contracts with foreign laboratories. Finally, the tier with the highest intensity of competition is usually retail sale or pharmacies, where our country features a few chains with a national presence alongside many independent pharmacies. If that is the market structure in our country, what would make sense is to authorize joint negotiations for pharmacies, so that they can secure greater discounts through purchase volumes by associating for that purpose. This is something that could particularly interest independent pharmacies. However, the Law authorized wholesale distributors to conduct joint negotiations with pharmacies. We do not understand the objective behind this, unless our perception of the market is mistaken and the bargaining power of pharmacies is greater than that of wholesale distributors.

The express authorization of purchasing coalitions or joint purchasing can be a good idea because, depending on the structure of certain markets, it can generate efficiencies. Nonetheless, this conduct is covered by the absolute prohibition of Article 11 of the Law for the Promotion of Competition and Effective Consumer Defense (Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor), if it results in collusion or the manipulation of the purchase price. All conducts contemplated under Article 11 are illegal per se. They do not admit any defense based on efficiencies or pro-competitive effects.

In our opinion, the gathering of several buyers to achieve the necessary volume to obtain a discount previously established by a supplier does not fall under that prohibition; however, the gathering of several competitors to negotiate against a client or a supplier is indeed prohibited. For this reason, the authorization of joint purchases or purchasing coalitions must be clear and express, so that it is understood as an exception to Article 11.

Nevertheless, Article 10 of Law No. 10838 indicates that: “All negotiations of purchase volumes must comply with the provisions of Law No. 7472, Promotion of Competition and Effective Consumer Defense, of December 20, 1994, with the purpose of avoiding anti-competitive practices that restrict equitable access to medicines.” This paragraph directs us straight back to Article 11 of said Law, returning us to the scenario where joint negotiations are prohibited, which seemingly frustrates the intent of Law No. 10838.

On the other hand, Law No. 10838 establishes three prohibitions:

1. Discrimination in granting volume discounts: “Price discounts based on volume must be available to all establishments in proportion to their purchases and without discrimination regarding access.”

2. Tying arrangements for medicines: “Wholesale distributors shall refrain from conditioning the sale of certain products on the purchase of others, with the purpose of promoting a varied supply and access to different therapeutic options.”

3. Exclusivities: “Wholesale distributors and importers shall be prohibited from establishing and maintaining exclusivity contracts with pharmacies.”

Relative monopolistic practices are regulated under Article 12 of the Law for the Promotion of Competition and Effective Consumer Defense, No. 7472 (and Article 54 of the General Telecommunications Law). These behaviors are subject to the rule of reason; that is, they are presumed legal. For a relative monopolistic practice to exist, it is necessary to prove the coexistence of three elements: i. That the economic agent holds substantial power in the relevant market; ii. That the economic agent has committed a conduct contemplated under Article 12; and iii. That the net effects of the conduct are anti-competitive.

Discriminatory treatment, tying arrangements, and exclusivity clauses are conducts contemplated under Article 12 of Law No. 7472. That is, they are subject to the rule of reason. They are not prohibited under Article 11 of said law.

However, the way Law No. 10838 is drafted seems to prohibit these three conducts under the stated terms, regardless of whether the economic agent performing them holds substantial power in the relevant market or not, and regardless of the net effects of the conduct (completely ignoring potential efficiencies).

Furthermore, Law No. 10838 also contains the following provisions:

“All negotiations of purchase volumes must comply with the provisions of Law No. 7472, Promotion of Competition and Effective Consumer Defense, of December 20, 1994.”

“For the purposes of this law, exclusivity contracts are considered a monopolistic practice in the medicines market, as they limit competition and equitable access to pharmaceutical products in the market. Any breach of this provision shall be sanctioned pursuant to Law No. 7472, Promotion of Competition and Effective Consumer Defense, of December 20, 1994.”

“In the event of a breach of the provisions of this law, the sanctions established under Law No. 7472, Promotion of Competition and Effective Consumer Defense, of December 20, 1994, shall apply. Said law specifically sanctions relative and absolute monopolistic practices, as well as unfair competition, pursuant to the provisions of Articles 10, 11, and 12.”

We do not understand the purpose of referencing Law No. 7472. These three conducts are already contemplated under that statute as relative monopolistic practices. Repeating it in Law No. 10838 makes little sense because it adds nothing new to the legal framework. Moreover, if the purpose of Law No. 10838 was to ban these behaviors and render them illegal per se, then it had to state so expressly as an exception to the treatment provided by Law No. 7472. By referring the treatment and enforcement actions—including sanctions—back to Law No. 7472, it reinforces these behaviors as relative monopolistic practices, rendering the provisions of Law No. 10838 inoperative on this matter.

To conclude this topic, Law No. 10838 notes that:

“The Ministry of Economy, Industry, and Commerce (MEIC) shall be responsible for the supervision and promotion of effective competition in the medicines market, in accordance with the provisions of the present law and Law No. 7472, Promotion of Competition and Effective Consumer Defense, of December 20, 1994.”

The only antitrust and competition authorities in the country are COPROCOM and SUTEL (Law No. 9736). MEIC is not a competition authority and, therefore, does not enforce Law No. 7472. Does this article transform it into a competition authority specifically for the medicines market? Does this article eliminate COPROCOM's jurisdiction over that market? If what they meant to say was that "MEIC, through COPROCOM, shall be responsible for the supervision and promotion of competition...", it would be technically incorrect because COPROCOM is an organ of maximum divestment (órgano de desconcentración máxima) endowed with technical independence.

In conclusion, Law No. 10838 leaves us with more questions than answers regarding relative monopolistic practices. We will analyze the other aspects of this Law in future briefs.