By a judgement of October 16, 2016, the French Supreme Court confirmed Sanofi’s sentence to a €40.6 million fine for anti-generic disparaging practices.
For the record, the French Competition Authority had sanctioned Sanofi-Aventis for having given, through its medical sales representatives and pharmaceutical representatives, incomplete information to physicians and pharmacists who discredited the Plavix® competing generics, “by unduly putting into question their efficiency and safety” in favor of Plavix® and the auto-generic marketed by Sanofi-Aventis itself. Sanofi-Aventis had insisted in its communications effort on the existence of differences in salts and indications between Plavix® and the competing generics, despite the fact that these differences, according to the French Competition Authority, had no impact on the substitutability of these medicines but were exclusively linked to questions of intellectual property. This communication had thus led to a large number of physicians adding the mention non-substitutable on Plavix prescriptions and a considerable drop in the sales of competing generics.
Among the various arguments raised in its appeal, Sanofi-Aventis had notably insisted on the fact that the communication on objective differences could not be considered as inciting to mislead physicians and pharmacists, and, in any event, the mere fact of possibly creating doubt or even fear was not sufficient to characterize abuse of a dominant position.
The French Supreme Court rejected all the arguments put forward by Sanofi confirming the position of the French Competition Authority and the Paris Court of Appeal: although a company in a dominant position can communicate on its active substance and the therapeutic indications of its product, it must take into account in its communication the reputation as a reference it has earned on the market in question and the risk aversion of healthcare professionals who prescribe or sell its medicine. However, Sanofi-Aventis had sent to its medical sales representatives and pharmaceutical representatives a list of arguments that put in question (i) the bioequivalence of generics and the choices made by health authorities, (ii) that recommended that physicians add the mention “nonsubstitutable” on their prescriptions and (iii) that incited pharmacists to substitute competing generics for Sanofi-Aventis’ auto-generic. The French Supreme Court thus confirmed that there was a body of evidence establishing disparaging practices against competing generics, which constituted an abuse of a dominant position.
The French Supreme Court also rejected Sanofi-Aventis’ argument for a reduction of the fine both with regard to the duration of the practices, whose effects went beyond the simple period of the misleading communication, and to the increase for belonging to a group which is justified by the determining influence of the group on the subsidiary involved and the group’s considerable financial resources.