The Full Court of the Federal Court of Australia has dismissed an appeal by the ACCC against an earlier judgment in relation to Pfizer Australia Pty Ltd (Pfizer).
The ACCC alleged that Pfizer breached the Competition and Consumer Act 2010 by misusing its market power to prevent or deter competition from other suppliers selling generic atorvastatin products to pharmacies, and engaged in exclusive dealing conduct for the purpose of substantially lessening competition, when offering to supply atorvastatin to community pharmacies.
“The ACCC brought this appeal because it was concerned that Pfizer’s use of its market position as supplier of the top selling branded atorvastatin immediately before generic products were able to enter the market harmed the competitive process and therefore consumers,” ACCC Chairman Rod Sims said.
“Over a million Australians rely on the drug atorvastatin to keep their cholesterol levels down.”
“The ACCC is carefully considering the judgment.”
“The ACCC remains committed to pursuing cases involving anti-competitive conduct, particularly misuse of market power, because of the harm that can be caused to the competitive process and ultimately to consumers,” Mr Sims said.
In early 2012, Pfizer offered significant discounts and the release of rebates accrued on previous sales of Lipitor to pharmacies. 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 genetic atorvastatin products.
The ACCC instituted proceedings against Pfizer in February 2014.
The ACCC alleged that Pfizer misused its position as a patent holder of atorvastatin to prevent or deter competition from other suppliers selling generic atorvastatin products to pharmacies.
The ACCC also alleged Pfizer’s conduct was for the purpose of substantially lessening competition in the market for atorvastatin.
The trial took place in October 2014 and judgment at first instance was given on 25 February 2015.
The appeal was heard by the Full Federal Court in November 2015.
Section 46 of the Competition and Consumer Act 2010 was amended by Parliament effective 6 November 2017. The ACCC took action against Pfizer using the pre-amendment section 46, which required a business with substantial market power to take advantage of its market power for a specified anti-competitive purpose.
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