French Competition Authority fines Schering-Plough for abuse of dominant position

19.12.2013

The pharmaceutical sector has been the subject of considerable scrutiny in France following the initiation of a sector inquiry in February 2013. This led to a public consultation entitled “How to revitalise competition in the distribution of medicines in cities?” being launched in July 2013. The results of the consultation were published on 19 December and call for, inter alia, more competition throughout the distribution chain.
On the same day, the French Competition Authority (“FCA”) announced that it had fined Schering-Plough €15.3m for its conduct in relation to Subutex (buprenorphine), a drug used to treat opioid addiction. In brief, the FCA found that Schering-Plough had disparaged Arrow’s generic drug in its sales pitches, as well as granting pharmacists unjustified discounts to prompt them to stock up on Subutex instead of generic alternatives.
This is the second decision of the FCA which penalises innovators for denigrating generic medicines, the first being its decision to fineSanofi €40.6m in May 2013 for disparaging a generic version of its Plavix blood thinner.
It might be that cases of this type are less likely to be brought in the UK: the higher levels of generic substitution here could reduce any effects caused by any such denigration of generics. Nevertheless, post-AstraZeneca, innovators must continue to be more careful than ever when interacting with others in the supply chain in the EU. National competition authorities seem keen to stretch the concept of ‘abuse’ to remedy a number of perceived problems in the pharma supply chain, however they arise and whether or not they fall within the limits of the existing case law.