As we previously reported, on September 20, 2017, Pfizer filed an antitrust lawsuit against Johnson & Johnson (J&J) in the U.S. District Court for the Eastern District of Pennsylvania alleging that J&J has engaged in an anticompetitive scheme to protect its Remicade® (infliximab) product.
On November 28, 2017, J&J filed a motion to dismiss Pfizer’s complaint alleging that Pfizer did not plead facts “showing that [J&J]’s discounts and rebates, rather than Pfizer’s own unwillingness to offer lower prices on [Pfizer’s] Inflectra or bundled discounts on Pfizer’s many profitable, billion-dollar products, are the cause of Inflectra’ s alleged poor record to date.”
On January 12, 2018, Pfizer filed its opposition to J&J’s motion to dismiss responding that J&J’s “web of exclusive dealing contracts” with insurance providers for Remicade® has “led to the near-total foreclosure of competition from FDA-approved ‘biosimilars,’ including Pfizer’s biosimilar, Inflectra.” Pfizer argued that J&J’s exclusionary contracts have resulted in “higher prices and reduced choices for consumers—exactly the harms that the antitrust laws are intended to prevent.”
On January 26, 2018, the Biosimilars Council filed an unopposed motion for leave to file an amicus curiae brief in opposition to J&J’s motion to dismiss. The Biosimilars Council’s brief argues that if the Court upholds the “exclusionary tactics such as those used by Defendants to prevent Inflectra from competing against Defendants’ branded infliximab product Remicade®,” J&J’s actions “will provide a roadmap for other pharmaceutical companies to stifle biosimilar competition.” The Council argues that “[r]eplication of these tactics across biologics markets will dramatically diminish incentives for developing future biosimilars, and competition in this critical, growing sector of the health care industry will suffer.” The Council alleges that J&J’s “Biosimilars Readiness Plan,” “could serve as a blueprint for every brand name biologic drug maker seeking to maintain monopoly power and profits indefinitely in the face of competition from a lower-priced biosimilar.” The Council alleged J&J’s “Biosimilars Readiness Plan,” includes:
- “Exclusive dealing contracts with health insurers that either (1) require insurers to deny coverage for Inflectra altogether or (2) impose unreasonable preconditions (like a “fail first” requirement) governing coverage for Inflectra. J&J coerces insurers into these agreements by denying insurers rebates for Remicade unless they refuse to cover Inflectra.”
- “Bundling arrangements through which J&J only provides rebates on other products if insurers agree not to cover Inflectra.”
- “Exclusionary agreements and bundling arrangements with healthcare providers similar to those entered into with insurers.”
The Biosimilars Council asserted that “this case will help define the scope of antitrust protections for biosimilars for years to come and determine the viability of the industry that Congress sought to create through the BPCIA.”
On February 1, 2018, J&J filed its reply brief in support of its motion to dismiss. No oral argument date has been set.
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