Identifier
Created
Classification
Origin
09BEIJING702
2009-03-18 22:59:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Beijing
Cable title:  

COCA-COLA,S BID FOR JUICEMAKER HUIYUAN BEATEN TO A

Tags:  ECON EFIN EINV EAID ETRD WTRO PREL CH 
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VZCZCXRO3290
OO RUEHCN RUEHGH RUEHVC
DE RUEHBJ #0702/01 0772259
ZNR UUUUU ZZH
O 182259Z MAR 09
FM AMEMBASSY BEIJING
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2941
INFO RUEHOO/CHINA POSTS COLLECTIVE IMMEDIATE
RUEHLO/AMEMBASSY LONDON IMMEDIATE 3508
RUEHFR/AMEMBASSY PARIS IMMEDIATE 4515
RUEHUL/AMEMBASSY SEOUL IMMEDIATE 1125
RUEHGP/AMEMBASSY SINGAPORE IMMEDIATE 9608
RUEHKO/AMEMBASSY TOKYO IMMEDIATE 2470
RUEAWJA/DEPT OF JUSTICE WASHDC IMMEDIATE
RUEHGV/USMISSION GENEVA IMMEDIATE 2414
RUCPDOC/DEPT OF COMMERCE WASHDC IMMEDIATE
RUEHBS/USEU BRUSSELS IMMEDIATE
RUEHRC/DEPT OF AGRICULTURE WASHDC IMMEDIATE
RUEATRS/DEPT OF TREASURY WASHINGTON DC IMMEDIATE
RHEHNSC/NSC WASHDC IMMEDIATE
RUEAIIA/CIA WASHINGTON DC IMMEDIATE
UNCLAS SECTION 01 OF 03 BEIJING 000702 

SENSITIVE
SIPDIS

STATE FOR EAP/CM -- FLATT
STATE FOR EEB/OIA -- SCHOLZ, TRACTON, HICKS, YAJNIK
STATE FOR E -- YON
STATE FOR D -- PARK
STATE FOR L -- CAPLAN
STATE PASS USTR FOR STRATFORD, WINTER, BAHAR, KALLMER
STATE PASS FTC FOR KALLAY, TRITELL, DAMTOFT
NSC FOR LOI
DOJ FOR CHEMTOB
TREASURY FOR RESNICK AND SAMPLINER
COMMERCE FOR BRZYTWA AND ARONOFF
PARIS PASS OECD

E.O. 12958: N/A
TAGS: ECON EFIN EINV EAID ETRD WTRO PREL CH
SUBJECT: COCA-COLA,S BID FOR JUICEMAKER HUIYUAN BEATEN TO A
PULP

REF: 2008 BEIJING 3775

Summary
-------

UNCLAS SECTION 01 OF 03 BEIJING 000702

SENSITIVE
SIPDIS

STATE FOR EAP/CM -- FLATT
STATE FOR EEB/OIA -- SCHOLZ, TRACTON, HICKS, YAJNIK
STATE FOR E -- YON
STATE FOR D -- PARK
STATE FOR L -- CAPLAN
STATE PASS USTR FOR STRATFORD, WINTER, BAHAR, KALLMER
STATE PASS FTC FOR KALLAY, TRITELL, DAMTOFT
NSC FOR LOI
DOJ FOR CHEMTOB
TREASURY FOR RESNICK AND SAMPLINER
COMMERCE FOR BRZYTWA AND ARONOFF
PARIS PASS OECD

E.O. 12958: N/A
TAGS: ECON EFIN EINV EAID ETRD WTRO PREL CH
SUBJECT: COCA-COLA,S BID FOR JUICEMAKER HUIYUAN BEATEN TO A
PULP

REF: 2008 BEIJING 3775

Summary
--------------


1. (SBU) China,s Ministry of Commerce (MOFCOM) announced
March 18 that it would not permit Coca-Cola,s proposed $2.4
billion acquisition of Huiyuan, China,s largest fruit juice
maker. In its short public announcement on the rejection,
MOFCOM cites concerns that Coca-Cola would be able to use its
dominant position in the carbonated beverage market to compel
distributors and retailers to carry the market-leading
Huiyuan brand of juices. MOFCOM also expressed concern about
the effect of the combination on China,s small and
medium-sized enterprises (SMEs) that compete with Coca-Cola
and Huiyuan. The process that drove MOFCOM to its conclusion
and its rejection of the deal both highlight the challenges
that foreign investors often face in China. These include
lack of transparency; China,s arbitrary casting aside of its
foreign investment catalogue, which lists fruit drinks in the
&encouraged8 category; the influence of competitors on
China,s administrative decisions; and the fact that China,s
Anti-Monopoly Law (AML) serves to promote China,s economic
development as much as competition. China,s rejection of
the deal illustrates challenges the U.S. should seek to
address in ongoing negotiations with China over a bilateral
investment treaty. Coca-Cola reiterated its request that the
United States not raise the case with China.

The Proposed Deal
--------------


2. (SBU) In September 2008, Coca-Cola reached agreement with
Huiyuan,s four largest shareholders ) the company,s
Chinese founder, French beverage group Danone, Warburg
Pincus, and Fidelity ) which collectively control 70% of

Huiyuan,s stock. The other 30% of Huiyuan,s shares are
listed on the Hong Kong stock exchange. The proposed
transaction price represented a 200% premium to the firm,s
market value. The contract was dependent upon China
approving the transaction within 200 days, a deadline which
could be extended if all parties to the transaction agreed.
(Note: AML implementing regulations allow China 30 days to
review transactions, plus 150 days to conduct more intensive
reviews, if needed. End Note.) Coke had never before
acquired a firm of Huiyuan,s size in China.


3. (SBU) Coca-Cola was initially cautiously optimistic that
China would approve the deal, as reported reftel, which most
Western competition experts believed posed few competitive
problems. Fruit juice drinks are listed in the encouraged
section of China,s Guidance Catalogue for Foreign
Investment. At the same time, Coca-Cola China Government
Affairs Director Christina Lau told Econ Minister Counselor
(M/C) in a March 18 meeting that well-connected Chinese
academics had expressed skepticism that the deal would be
approved.

Coca-Cola Lacked Access
--------------


3. (SBU) Lau told Econoffs Coca-Cola did not lobby
aggressively for approval of the deal. Coke,s contacts with

BEIJING 00000702 002 OF 003


MOFCOM were almost exclusively at the working level, with AML
Bureau Deputy Director Zhu Zhongliang, plus one additional
meeting with AML Bureau Director General Shang Ming.
Coca-Cola had sought and was unable to obtain access to Vice
Premier Wang Qishan, Commerce Minister Chen Deming, and
Commerce Vice Minister Ma Xiuhong. Commerce Minister Chen
had &fled the scene8 when Lau introduced herself at an
Amcham event, she recalled. Coca-Cola had made an internal
decision to be quiet and work through official government
channels, she added. In addition, Coca-Cola had not
approached MOFCOM before announcing the deal to feel out
whether it was likely to be approved.

Shocking Lack of Transparency in China,s Review of the Deal
-------------- --------------


4. (SBU) In an separate March 4 meeting with Econ M/C Luke,
Coca-Cola Pacific Deputy President Paul Etchells said that in
meetings with Coca-Cola, MOFCOM initially refused to describe
its concerns about the transaction,s effects on competition.
Instead, MOFCOM officials said that Coca-Cola had more
experience with anti-trust analysis than China, so Coke
should
&self assess8 the deal and propose mitigating solutions.


5. (SBU) Etchells also expressed frustration that Coca-Cola
had &no visibility about what was going on8 at MOFCOM.
MOFCOM officials repeatedly declined to update Coca-Cola on
the deals status or confirm who was reviewing it. He said
there were vague references to higher-level authorities.
(Comment: We think it is likely given the size of the
transaction that China,s State Council reviewed the deal.
In addition, several other Chinese agencies have regulations
related to foreign investment and it is not clear what role
those agencies may have played as well. End Comment.)


6. (SBU) In addition, Etchells said, while Coca-Cola had
notified MOFCOM of the proposed deal on September 18, MOFCOM
did not start the clock for its review for many weeks, as it
sought additional information. In some instances, MOFCOM
would ask for additional information without specifying what
additional information it was seeking. In total, through
March 4, Coca-Cola had submitted written information 12 times
and had 18 further interactions with MOFCOM, he said.
Coca-Cola said MOFCOM had also sought opinions from industry
associations and competitors.

China,s Concerns Unrelated to Competition Policy
-------------- ---


7. (SBU) Etchells said that Coca-Cola was able to identify
some of MOFCOM,s concerns, although MOFCOM never explicitly
confirmed them. They were as follows:

(A) Coke,s deal with Huiyuan included a non-compete clause
that would have prevented Huiyuan,s founder from
establishing or working for a competing business for two
years. Coke characterized the clause as a standard clause in
merger and acquisition (M&A) transactions. Etchells said
this issue seemed to be among MOFCOM,s chief concerns.

(B) MOFCOM was concerned that Coca-Cola was buying off
Huiyuan in order to &kill off its brand.8 Etchells said

BEIJING 00000702 003 OF 003


that this analysis &made no sense8 since the bulk of the
value of Huiyuan was its market-leading brand. (Note:
Huiyuan is a bottler. It buys juice and packages it. End
Note.) Etchells sensed that this line of reasoning reflected
&political pressure8 on MOFCOM. The potential sale of
Huiyuan,s brand to a leading foreign firm like Coca-Cola
sparked heated opposition to the deal in China,s
&blogosphere,8 he added. MOFCOM offered no ideas on how
Coca-Cola could reassure it that this was not its plan.

(C) MOFCOM was concerned about the effect of the deal on
Coca-Cola,s bottlers, which include one Chinese state-owned
enterprise (SOE),COFCO. Etchells said MOFCOM was concerned
that China should &give COFCO some benefit of its ownership
in Huiyuan,8 like more distribution rights, &but was
concerned that Coca-Cola would expect money for this.8 He
said MOFCOM also alluded to the idea of transferring Huiyuan
manufacturing to COFCO.

(D) MOFCOM also asked Coca-Cola several times why it imports
the juice it uses for its Chinese Minute-Maid brand juice
drinks and suggested Coca-Cola consider using Chinese-made
juice. Etchells said Chinese-made juice is not as high
quality as the Brazilian juice that Coca-Cola buys and noted
that Huiyuan also uses imported juice in most of its products.

(E) MOFCOM thought that there was a risk that Coca-Cola could
use its 50% market position in the carbonated drinks sector
to unfairly promote Huiyuan products through tie-ins.
(Comment: This concern appears to be the only one relevant
to the Anti-Monopoly Law. End Comment.)


8. (SBU) MOFCOM,s press release on the deal refers to
concerns about the effect of the deal on small and
medium-sized Chinese enterprises and also mentions the tie-in
concern, but none of the other issues mentioned above. Our
initial attempt to get additional details from MOFCOM
regarding its analysis of the case was rebuffed. We will
continue to seek information as it becomes available. We are
sending separately by email a translation of the MOFCOM press
release.

Coke,s Next Steps
--------------


9. (SBU) We are unaware of any effective appeal provisions
for M&A reviews under China,s Anti-Monopoly Law. In any
case, Coca-Cola Pacific Deputy President Etchells told us
that if MOFCOM did not approve the deal, it would effectively
die. Hong Kong takeover regulations would require Coca-Cola
to wait 12 months before re-submitting a revised offer. In
addition, declining equity markets would lead Coca-Cola to
seek a lower valuation in any future deal, which Huiyuan,s
founder likely would be unwilling to accept. That said, Coke
Government Affairs Director Lau affirmed that Coke would not
pull back from the China market, which is its third biggest
after the United States and Mexico. She added that there are
other bidders interested in Huiyuan, some of which had
participated in the initial auction, which Coke had won.
PICCUTA