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Anticompetitive Marketing in the Context of Pharmaceutical Switching in Europe

19 Pages Posted: 28 Aug 2013  

Bengt Domeij

Uppsala University - Faculty of Law

Date Written: August 28, 2013


The article deals with the intersection between competition law rules on abuse of a dominant position and switching strategies employed by pharmaceutical originator companies. Switching is also known as ever-greening, product hopping or product life cycle strategies. It is one of the most topical issues in the patent-antitrust intersection today and consists in launching a slightly modified, second generation pharmaceutical, 1-2 years before the patent exclusivity expires for a first generation product. In this window originators try to migrate patients to a reformulated product. If successful, this will shield the originator from the effects of generic substitution for the first generation product. In the AstraZeneca-case the EU General Court held that a selective redrawal of marketing authorizations for a first generation product was an abuse of a dominant position under article 102 TFEU. This article focuses on other components in a switching strategy, especially the timing and content of marketing efforts by an originator company. Marketing is pro-competitive in almost all cases, but due to the special regulatory context in the pharmaceutical industry, marketing by an originator company can be used in an excluding fashion in the pharmaceutical industry. The conclusion is reached that casting the quality or price of the originator’s first generation product in a bad light, in comparison with the second generation product during exclusivity for the first generation product, may be an abuse by a dominant firm falling foul of article 102 TFEU. It is in effect equivalent to negative comparative advertising messages concerning a competitor’s soon to be launched product.

Keywords: Competition law, pharmaceutical, patent, supplementary protection

JEL Classification: K21

Suggested Citation

Domeij, Bengt, Anticompetitive Marketing in the Context of Pharmaceutical Switching in Europe (August 28, 2013). Available at SSRN: or

Bengt Domeij (Contact Author)

Uppsala University - Faculty of Law ( email )

Faculty of Law Box 512
Uppsala, SE-751 20
+46 709 90 40 48 (Phone)


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