ACCC vs Pfizer case comes to a close

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The High Court has dismissed the ACCC’s application for special leave to appeal in its case against Pfizer Australia over the sale of atorvastatin

This month the Australian Competition and Consumer Commission (ACCC) sought leave to appeal against a judgment handed down by the Full Federal Court on 25 May 2018, following a longstanding case against Pfizer.

The ACCC first instituted the proceedings in February 2014, alleging that Pfizer had misused its position as a patent holder of atorvastatin to prevent or deter competition from other suppliers selling generic atorvastatin products to pharmacies.

This related to its conduct in early 2012, when Pfizer offered significant discounts and the release of rebates accrued on previous sales of Lipitor to community pharmacies across Australia.

Pfizer’s offer was conditional upon pharmacies acquiring a minimum volume of Pfizer’s generic atorvastatin and agreeing to restrict their re-supply of competing generic atorvastatin products.

The ACCC also alleged Pfizer’s conduct was exclusive dealing with the purpose of substantially lessening competition in the market for atorvastatin.

In its May 2018 judgment the Full Court found that Pfizer took advantage of its “substantial” market power at the time of the conduct.

However it did not accept the ACCC’s argument that Pfizer had acted for the purpose of substantially lessening competition or deterring or preventing competitors from competing.

In a final attempt to pursue the case, the ACCC proposed special leave to appeal the judgment, however its application was refused with costs.

“This decision ends this case, but does not end the ACCC’s determination to pursue companies which engage in anti-competitive conduct,” ACCC Chair Rod Sims said.

Pfizer Australia welcomed the High Court decision.

“We have always maintained that our behaviour was appropriate and reflected the high ethical standards, integrity and compliance that are central to our culture,” said Pfizer.

“During the Court’s considerations we have continued our work with clinicians and pharmacists, who prescribe and dispense Pfizer medicines to patients every day. We will maintain this strong focus, in the interests of improved patient health outcomes.”

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