A Non-Coercive Approach to Product Hopping

33 Antitrust 102 (2018)

6 Pages Posted: 16 Jan 2019

Date Written: November 30, 2018

Abstract

The antitrust analysis of product hopping is nuanced. The conduct, which consists of a drug company’s reformulation of its product and encouragement of doctors to switch prescriptions to the reformulated product, sits at the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state substitution laws, and involves uniquely complicated markets with different buyers (insurance companies, patients) and decision-makers (physicians).

In Doryx, Namenda, and Coercion, Jack E. Pace III and Kevin C. Adam applaud some courts’ use of a product-hopping analysis that finds liability only where there is an element of coercion. In this response, we explain that the unique characteristics of pharmaceutical markets render such a coercion-based approach misguided. We also show that excessively deferential analyses would give brand-name drug firms free rein to evade generic-promoting regulatory regimes. Finally, we offer a conservative framework for analyzing product hopping rooted in the economics and realities of the pharmaceutical industry.

Keywords: product hopping, pharmaceuticals, antitrust, drugs, innovation

JEL Classification: I18, K21, L40, L41, L43, L65, O34, O38

Suggested Citation

Carrier, Michael A. and Shadowen, Steve, A Non-Coercive Approach to Product Hopping (November 30, 2018). 33 Antitrust 102 (2018). Available at SSRN: https://ssrn.com/abstract=3310834

Michael A. Carrier (Contact Author)

Rutgers Law School ( email )

217 North Fifth Street
Camden, NJ 08102-1203
United States
856-225-6380 (Phone)
856-225-6516 (Fax)

Steve Shadowen

Hilliard & Shadowen LLP ( email )

39 West Main Street
Mechanicsburg, PA 17055
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
97
Abstract Views
537
rank
272,216
PlumX Metrics