The FTC Loses A Pay-To-Delay Case
2 CommentsBy Ed Silverman // February 24th, 2010 // 7:45 am
A federal judge dismissed an antitrust lawsuit filed by the Federal Trade Commission against Abbott Labs’s Solvay Pharmaceuticals unit for allegedly conspiring with several generic drug makers to delay competition for its AndroGel testosterone-replacement med (here is the ruling).
The ruling is a setback for the agency, which has been pushing aggressively to end so-called pay-to-delay deals (look here). The White House, in fact, included a proposal to make these agreements illegal as part of its health care reform package (see here).
The FTC alleged Solvay entered into illegal deals with Watson Pharmaceuticals, Par Pharmaceutical and Paddock Labs to delay introduction of a generic AndroGel. The generics sought FDA approval and, in their submissions, noted their copycats wouldn’t infringe on Solvay patents, Dow Jones writes. However, the FTC charged Solvay paid each generic rival a share of AndroGel profits in exchange for agreeing not to launch a generic until 2015 and for dropping their patent challenges (see documents here).
Richard Feinstein, head of the FTC’s bureau of competition, tells Dow Jones the ruling was “obviously disappointing,” but “a new law is the quickest and most effective way to serve the interests of the millions of US consumers who take prescription drugs and deserve unfettered access to lower-cost generic alternatives.”
Condor
Good stuff, Ed — I think this may turn out to be a case of winning the battle, but losing the war — for big pharma. I think the presumption against these deals in the Senate’s bill is going to gain traction, as is President Obama’s highlighting of it, in his Plan.
The head of the FTC’s Competition Bureau is right, with his quoted reaction to Judge Thrash’s decision, here:
. . . .Richard Feinstein, head of the FTC’s bureau of competition, said the ruling was “obviously disappointing,” but said the decision underscored the need for a legislative solution, such as the prohibition included in Obama’s health-care proposal.
“A new law is the quickest and most effective way to serve the interests of the millions of U.S. consumers who take prescription drugs and deserve unfettered access to lower-cost generic alternatives,” Feinstein said. . . .
Quite so. NPR’s Scott Hensley did a nice three minute audio mp3 on what pay for delay is — in highly simplified terms, overnight, as well. It is linked at the bottom of this one, of mine.
Add to this Mr. Obama’s support for a repeal of the health insurers’ antitrust exemptions, and there may yet emerge some real change — toward fairer health care delivery systems, in the United States.
Namaste
M T
Be careful what you wish for. It needs to be remembered that the brand name companies have pretty strong patents on these drugs that generic companies are trying to jump. They may just decide to take these cases to court, where they will likely win, in which case patients will wait even longer before being able to access the generic. Apotex jumped the Plavix patent, but lost in court, and Plavix is still protected.