BRIEF—ACCC unsuccessful in appeal against Pfizer

The Full Court of the Federal Court of Australia has dismissed an appeal by the Australian Competition and Consumer Commission (ACCC) against an earlier judgment in relation to Pfizer Australia.

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, the once mega-blockbuster cholesterol drug marketed by Pfizer under the brand name Lipitor, 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.