Australian Competition and Consumer Commission v Pfizer: Evergreening and Market Power as a Blockbuster Drug Goes Off Patent

Faunce TA. ACCC v Pfizer: Evergreening and market power as a blockbuster drug goes off patent JLM 2015; 22: 771-787

17 Pages Posted: 29 Oct 2018

Date Written: 2015

Abstract

In Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2015] FCA 113 the ACCC alleged that Pfizer’s ‘Project LEAP’ involved a scheme to lock pharmacists into substituting its generic version of the high sales volume anti-cholesterol drug patent-expired Atorvastatin (Lipitor) which took advantage of a substantial degree of market power for a purpose proscribed by s 46(1)(c) of the Competition and Consumer Act 2010 (Cth). The ACCC also claimed that Pfizer’s actions constituted a course of exclusive dealing pursuant to s 47(1)(d) and (e) for the proscribed purpose of lessening competition. Flick J in the Federal Court of Australia in a judgment heavy with quotations but sparse in reasoning, dismissed the ACCC’s Amended Originating Application alleging abuse of market power and ordered the ACCC to pay Pfizer’s costs. This column explores that case in the context of Pfizer’s broader strategies to preserve its income globally from this high sales volume drug.

Note: This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as ‘Faunce TA, Australian Competition and Consumer Commission v Pfizer: Evergreening and Market Power as a Blockbuster Drug Goes Off Patent, 2015, 22, JLM, 771’.

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039.

Keywords: Evergreening, Pharmaceutical Patents, Drug Industry, Anti-Cholesterol Drug, Abuse of Market Power, Competition Law

JEL Classification: I18, K32

Suggested Citation

Faunce, Thomas Alured, Australian Competition and Consumer Commission v Pfizer: Evergreening and Market Power as a Blockbuster Drug Goes Off Patent (2015). Faunce TA. ACCC v Pfizer: Evergreening and market power as a blockbuster drug goes off patent JLM 2015; 22: 771-787 . Available at SSRN: https://ssrn.com/abstract=3241855

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
Australia
61 2 61253563 (Phone)

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