The Australian Competition and Consumer Commission has instituted proceedings in the Federal Court of Australia against Pfizer Australia Pty Ltd (Pfizer) for alleged misuse of market power and exclusive dealing in relation to its supply of atorvastatin to pharmacies in contravention of the Competition and Consumer Act 2010.
Atorvastatin is a pharmaceutical product used to lower cholesterol and Pfizer’s originator brand of atorvastatin, Lipitor, was for a number of years the highest selling prescription medicine under the Pharmaceutical Benefits Scheme.
Prior to the loss of patent protection in May 2012, Lipitor was prescribed to over one million Australians, with annual sales exceeding $700m.
The ACCC’s allegations relate to offers made by Pfizer to pharmacies in early 2012 for the supply of Lipitor and Pfizer’s own generic atorvastatin product.
The ACCC alleges that Pfizer offered significant discounts and the payment of rebates previously accrued on sales of Pfizer’s Lipitor, conditional on pharmacies acquiring a minimum volume of up to 12 months’ supply of Pfizer’s generic atorvastatin product
The offers were first made prior to Pfizer’s loss of patent protection for the atorvastatin molecule, when other suppliers of generic medicines were prevented from making competing offers to supply a generic atorvastatin product to pharmacies.
“The ACCC alleges that Pfizer engaged in this conduct for the purpose of deterring or preventing competitors in the market for atorvastatin from engaging in competitive conduct, as well as for the purpose of substantially lessening competition,” ACCC Chairman Rod Sims said.
“Deterring anti-competitive conduct is an ACCC enforcement priority because of the harm that it can cause to the competitive process and ultimately to consumers, particularly with such a widely used product.”
“This case also raises an important public interest issue regarding the conduct of a patent holder nearing the expiry of that patent and what constitutes permissible competitive conduct,” Mr Sims said.
The ACCC is seeking pecuniary penalties, declarations and costs.
A directions hearing has been set for 9.30am on 18 March 2014 in the Federal Court, Sydney.