Disparaging the competition?

On 31 January 2024, the UK Competition and Markets Authority (CMA) announced it had launched an investigation into Vifor Pharma, a global pharmaceutical company, over its suspected anti-competitive conduct in the supply of intravenous (IV) iron deficiency treatments for NHS patients in the UK.   Vifor makes Ferinject – a leading IV iron deficiency treatment in the UK.   According to the CMA press release, (see here) the investigation will look into whether Vifor has restricted competition by making misleading claims to healthcare professionals about the safety and effectiveness of Monofer, a rival high-dose IV iron deficiency treatment supplied by Pharmacosmos.

This is the latest step in a long running dispute between Vifor and Pharmacosmos over these IV iron deficiency products.  For example, Pharmacosmos has made a series of complaints to the UK’s Prescription Medicines Code of Practice Authority about the marketing of Ferinject since around 2011. The PMCPA panel considered in 2016 that Vifor had disparaged Monofer in promotional calls, and imposed sanctions for breach of the Code of Practice. 

Then, in June 2022, the European Commission opened an investigation into whether Vifor has restricted competition by disseminating misleading information about Monofer, which may have delayed uptake of the competing treatment within the EEA . The CMA will liaise with the European Commission as its own investigation progresses in the UK, given that the two investigations appear to cover the same conduct.   

This is the first time the CMA has investigated on a standalone basis a concern that a dominant company may have abused its market power by making misleading statements about a rival.  In previous cases, (Reckitt Benckiser and Proctor & Gamble Pharmaceuticals) the CMA has considered misleading or disparaging conduct as part of its investigation, but has not made any specific findings as to whether this conduct could constitute a breach of competition law on its own.  If the CMA concludes that Vifor has broken competition law, it can impose a fine of up to 10% of turnover.

For the Commission, this is also fairly new ground.  As far back as 2005, the Commission established that the provision of misleading information to the patent regulators in order to hinder rival generic drugs could be an abuse of a dominant position, imposing a fine for such conduct on Astra Zeneca. But there have not been any EU level cases considering a general marketing campaign of disparagement against a rival in the market.  However, the Commission is obviously concerned about this type of behaviour.  As well as the Vifor investigation, they have an ongoing case against Teva in relation to similar conduct.  The Commission’s case against Teva alleges both misuse of the patent system and disparagement of a rival multiple sclerosis medicine, in order to hinder competition to Teva’s blockbuster medicine, Copaxone.

However, other competition authorities, notably the French AutoritĂ© de la concurrence, do have an established line of cases on disparagement as a standalone abuse of dominance.  The French cases indicate that pharmaceutical companies holding a dominant position must take care to ensure that their marketing is not only truthful and backed by evidence, but also measured. Particular care must be taken when addressing healthcare professionals, who may be especially cautious, and also overwhelmed with large volumes of marketing information that they may struggle to stay on top of.

It is clear that pharma companies engaging in comparative marketing will need to carefully watch developments in this area, to avoid stepping over the line from permitted rivalry into breach of competition law.

 

Find out more about our life sciences and competition law services. 

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