ACCC v Pfizer kicks off
October 8, 2014
THE first hearing for the
Australian Competition and
Consumer Commission (ACCC)
versus Pfizer case began yesterday,
with Pfizer’s opening statement
expected today.
The court heard details of the
ACCC’s case, which alleges misuse
of market power and exclusive
dealing with relation to supply of
atorvastatin (PD 14 Feb).
The ACCC referred to sections
46 and 47 of the Competition
and Consumer Act, alleging that
Pfizer had a substantial degree of
market power and was proscribed
from using that power to prevent
competitive conduct in the
atorvastatin market.
Two contraventions were alleged;
the first involved an accrual fund
scheme established in January
2011, which allotted a rebate equal
to a percentage of non-generic
purchases, the offer of discounts in
relation to Lipitor and Pfizer’s own
generic, conditional on pharmacies
acquiring a minimum volume of
up to 12 months’ supply of Pfizer’s
generic, and direct to pharmacy
supply arrangements; and the
second, the late acceptance terms
and conditions, the ACCC said.
The ACCC previously said that
these offers were made before the
atorvastatin patent expiry in May
2012, when other generic suppliers
were prevented from making
competing offers.
The ACCC detailed its amended
claim involving a corporation with
substantial market power supplying
goods at substantially less than cost
to prevent a competitor’s market
entry.
The ACCC emphasised that it
was not motive of conduct but the
effect sought to be achieved, and
whether the substantial purpose
was to block out competitors, that
section 46 was concerned with.
Pfizer could do things other
companies could not, including
offering discounts on both generic
and branded atorvastatin with its
direct to pharmacy model, it said.
There was an emphasis on the
accrual scheme and direct delivery
model to establish a “successful
sell-in” for a period after loss of
exclusivity, the ACCC said.
It would seek in excess of $10m
for each alleged contravention.
Pfizer said it intended to
“vigorously defend” itself against
the allegations, and that as the
matter was before court, it was not
appropriate to comment further.
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