In a recent decision handed down on 25 May 2018 (ACCC v Pfizer Australia Pty Ltd  FCAFC 78), 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 Pty Ltd (“Pfizer”). The Full Court upheld the single judge decision that Pfizer had not misused its market power or engaged in prohibited anti-competitive exclusive dealing.
The ACCC had alleged that Pfizer breached ss 46 and 47 of the Competition and Consumer Act 2010 (Cth) (the “Act”) 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’s case centred on actions taken by Pfizer in 2012 to lessen the impact it would face when its exclusive right to market atorvastatin expired on 18 May 2012. At that time, Lipitor (a cholesterol drug) was the world’s best-selling prescription drug.
During 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, alleging in this instance, 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.
Thereports that the ACCC alleged the:
The ACCC alleged [at para 568] of the judgment:
On 6 November 2017, Federal Parliament amended s 46 of the Competition and Consumer Act 2010 (Cth). The action which ACCC took against Pfizer involved the section 46 before the amendment came into effect, so it needed to demonstrate that a business with substantial market power took advantage of its market power for a specified anti-competitive purpose.
In handing down their judgment (see para 607(f)), their Honours said of s 46:
Commenting in a recent, the ACCC Chairman Rod Sims said:
In separate action by the ACCC, thereports that ACCC is suing Australia's largest private hospital operator Ramsay Healthcare, alleging it engaged in misuse of market power and exclusive dealing by threatening to reduce surgeons' access to operating theatres in Coffs Harbour if they became involved with a competitor.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd  FCAFC 78
FREE legislation news, delivered weekly.
Sign up now.#WeLoveLegislation Tweets
NEW information resources - great for training.