Australia’s competition regulator seeks to appeal Pfizer judgment

The Australian Competition and Consumer Commission ( ACCC) said yesterday that it has sought to appeal against a decision by the Full Federal Court of Australia in a case involving Pfizer.

Pfizer markets cholesterol-lowering medication atorvastatin under the brand name Lipitor (atorvastatin calcium), the patent for which expired in 2012.

In anticipation of the expiry, Pfizer offered pharmacies discounts and rebates based on a bundled supply of Lipitor and Pfizer’s generic atorvastatin product.

The ACCC, which is Australia’s competition regulator, claimed that Pfizer was “misusing its market power to prevent or deter competition from other suppliers selling generic atorvastatin products to pharmacies”.

The Federal Court ruled in 2015 that Pfizer’s activity was not in breach of the Competition and Consumer Act, prompting the ACCC to appeal.

According to the court, Pfizer did take advantage of its substantial market power, but it did not deter or prevent competitors from competitive conduct.

The court also ruled that Pfizer’s actions were motivated by the desire to remain competitive in the atorvastatin market, rather than to lessen competition.

In May, the Full Federal Court rejected the ACCC’s appeal.

The ACCC has now announced that it has sought special leave from the High Court of Australia to appeal against the Full Federal Court’s judgment.

“The ACCC is seeking clarity from the High Court on how to assess anti-competitive purpose, an important issue raised by this case,” said ACCC commissioner Sarah Court.

“This case raises important issues about when a company with substantial market power can be found to have acted with a proscribed anti-competitive purpose,” Court concluded.

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