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ACCC loses misuse of market power case against Pfizer over cholesterol lowering drug

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The Australian Competition and Consumer Commission (ACCC) has lost its Federal Court case against Pfizer Australia over the alleged misuse of market power.

The competition watchdog’s claims related to the supply of Lipitor, Pfizer’s cholesterol lowering drug, as well as its generic atorvastatin product to pharmacies just before the drug came off patent in May 2012.

At its peak, more than a million Australians were prescribed the drug, which is on the pharmaceutical benefit scheme, generating annual sales of more than $700 million.

The ACCC alleged that when Pfizer offered significant discounts and rebates on earlier sales if pharmacies bought a minimum of 75% of year’s supply of the generic drug and dealt with the pharmaceutical giant exclusively, it was misusing market power.

But today in the NSW Federal Court Justice Geoffrey Flick dismissed the year-long case, finding that while Pfizer had taken advantage of its market power, the company’s power was no longer “substantial” at the time the offers were made in January 2012.

Justice Flick also ruled that the ACCC failed to establish Pfizer’s conduct was aimed at deterring or preventing competition.

ACCC Chairman Rod Sims said his organisation brought the case because it raised important public interest issues about the conduct of patent holders as their patent expired.

He said the ACCC would consider the judgement and did not flag an appeal

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