Alleged abuse in the market for antacid drugs

The Office of Fair Trading (“OFT”) has issued a Statement of Objections expressing its concern that Reckitt Benckiser (“Reckitt”), the producer of the heartburn remedy Gaviscon, has abused its dominant position in the market for the supply to the NHS of heartburn medicines. The OFT alleges that Reckitt withdrew and de-listed Gaviscon Original Liquid, a heartburn medicine which no longer benefits from patent protection, from the NHS prescription channel so that pharmacies would be prevented from dispensing a cheaper generic alternative medicine. Currently, when a patent expires a generic name is assigned to the medicine and GPs can provide patients with an open prescription indicating the generic name of the drug. Pharmacies can then dispense either the branded product or the generic equivalent. According to the allegations, by withdrawing Gaviscon Original Liquid from the prescription channel, GPs could only prescribe Gaviscon Advance Liquid, an equivalent heartburn product which was still protected by a patent. The allegations in this case are similar to those arising in the European Commission's decision in the AstraZeneca case (currently on appeal). It is noted that a Statement of Objections is issued an early stage of a competition law investigation and no assumptions can be made about Reckitt's liability. The company has yet to formally present its views on the allegations.

AstraZeneca abuse

On 15 June 2005, the European Commission found that AstraZeneca's behaviour of de-listing one formulation of its Losec drug and replacing it with an alternative formulation amounted to an abuse. Case under appeal before the General Court T-321/05.