The Federal Court today handed down judgment in the matter of ACCC v Pfizer Australia Pty Ltd (Pfizer). These proceedings concerned Pfizer’s 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.
The Australian Competition and Consumer Commission’s allegations related to offers made by Pfizer to pharmacies in early 2012 for the supply of Pfizer’s originator brand of atorvastatin, Lipitor, and Pfizer’s own generic atorvastatin product.
Justice Flick dismissed the ACCC’s Application, finding that while Pfizer had taken advantage of its market power by engaging in the alleged conduct, Pfizer’s market power was no longer “substantial” at the time the offers were made in January 2012.
Justice Flick also found that the ACCC had failed to establish that Pfizer had pursued its conduct for the proscribed purpose of deterring or preventing competitors from engaging in competitive conduct or for the purpose of substantially lessening competition.
“The ACCC will carefully consider the judgment,” ACCC Chairman Rod Sims said.
“The ACCC brought this case because it raised important public interest issues regarding the conduct of a patent holder nearing the expiry of that patent and what constitutes permissible competitive conduct”
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 alleged 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 75% of 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 not permitted to make competing offers to supply a generic atorvastatin product to pharmacies.