Antitrust Developments in Food and Pharma

Annual Review of Resource Economics 7 (2015): 375-398

35 Pages Posted: 28 Aug 2018

See all articles by John M. Connor

John M. Connor

American Antitrust Institute (AAI); Purdue University

Multiple version iconThere are 3 versions of this paper

Date Written: 2015


Closing the loopholes of downstream application of the Capper-Volstead exemption in the food system and pay for delay in pharmaceuticals is an important advance in US and EU antitrust norms. First, pay-for-delay conduct has been harmful for pharmaceuticals customers. After ten years of litigation that divided circuit courts, the Supreme Court decreed that payments to generic drug sellers by the patent holders of the brand equivalent that are aimed at delaying entry are illegal, but did so under a structured rule-of-reason approach. EU competition authorities treat such payments as per se civil infractions. Second, until court decisions made in 2011–2014, the reach of the Capper-Volstead Act and the legality of pay-for-delay conduct in the drug industry were in doubt. In 2015, most federal circuits now clearly agree that, at a minimum, acreage restrictions by marketing cooperatives are per se illegal. Moreover, any manipulation by farmers’ cooperatives of upstream supply is also likely to be illegal.

Keywords: Agriculture, Generic Drug, Antitrust, Pay for Delay, Cooperatives, Capper-Volstead, Hatch-Waxman

JEL Classification: L41, L65, L66, K21

Suggested Citation

Connor, John M. and Connor, John M., Antitrust Developments in Food and Pharma (2015). Annual Review of Resource Economics 7 (2015): 375-398, Available at SSRN: or

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