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28 November 2012
In a July 2012 decision(1) the president of the Brussels Commercial Court dismissed Pfizer's misleading advertising claims directed against an advertisement for a generic atorvastatin product marketed by Eurogenerics (EG), as well as EG's counterclaim regarding the marketing of Pfizer's own generic product. On the one hand, the court decided that doctors are perfectly capable of determining whether the packs compared by EG in its advertisements are relevant for their patients; on the other, the court disagreed with EG's claim that Pfizer's slogan "We do more than just copy" suggested that its generic product was somehow superior to others.
Pfizer sells the prescription drug Lipitor, whose active ingredient is atorvastatin, which is used to treat high cholesterol. Pursuant to a well-documented patent settlement between Pfizer and Ranbaxy in 2008 and an agreement between Ranbaxy and EG, EG launched the generic atorvastatin product AtorstatinEG on the Belgian market in March 2012, before the expiry of the relevant patents. At the time, Pfizer also sold its own generic Lipitor product, Totalip. Regardless of the patent settlement, relations between Pfizer and EG were clearly tense upon the launch of EG's product, with both companies concerned over the other's advertising campaign, particularly as both undertakings wished to be the first to launch an atorvastatin generic in Belgium.
In the early March 2012 editions of Artsenkrant/Le Journal du Médecin, a bi-weekly publication for medical practitioners, EG published advertisements for its AtorstatinEG product. In the advertisement EG compared the price of AtorstatinEG to both Lipitor and Totalip by means of an hourglass. The hourglass showed that for the price of a 12-month treatment with Lipitor, a patient could afford 39 months of AtorstatinEG treatment. Similarly, the price of a 12-month treatment with Totalip was depicted to be equal to the price of 31 months' treatment with EG's generic product. The advertisement mentioned that the price comparison was made with the 28-tablet pack (containing 10 milligram tablets) and that the hourglass bore no relation to the duration of treatment.
Pfizer alleged that the campaign was misleading. Its objections were twofold.
First, while it did not dispute the numbers in the advertisement, Pfizer submitted that the price of the 28-tablet pack was not a relevant basis for the comparison, because treatment for high cholesterol takes a long time and small packs represent only a negligible amount of sales. The court disagreed. Further to the fact that the 28-tablet pack was the only package size that both companies had in common, it held that the average doctor would be capable of assessing whether the prices and packs advertised were relevant for his or her patients. According to the court, doctors focus on price, pack size and the reimbursement category of the product. In the eyes of the court, the EG advertisement would essentially be perceived by doctors as no more than an indicative announcement of the arrival of a generic product.
Pfizer's second plea related to the reimbursement category of the products. Allegedly, EG had incorrectly claimed to market the only generic product that was reimbursed in Category B, whereas Totalip was also reimbursed in that category. EG replied that it had stated that it was the only generic reimbursed in Category B and Chapter 1,(2) which was correct at the time of publication. The court sided with EG on this matter, holding that there was no misleading information in the advertisement. On top of that factual finding, the court held that doctors are aware of the rules regarding reimbursement of pharmaceutical products and their implications.
In late March 2012 Pfizer published advertisements for Totalip in the same periodical. Pfizer held that Totalip was "the first generic to be reimbursed in Category B (Chapter I as of 1 April 2012)". The advertisement further featured the slogan "We do more than just copy".
As for being "the first generic to be reimbursed", EG objected to the text, because it would mislead doctors into thinking that Totalip was the first product reimbursed in Category B, Chapter 1 when it was not. The court disagreed and held that the statement related to being the first generic to market, regardless of reimbursement status. The court further held that doctors would not be misled by this statement, because they can be assumed to be aware of the fact that multiple generic products are available. According to the court, doctors are interested only in the reimbursement status of the product and they would therefore not adjust their prescriptions due to the advertising.
EG also objected to the statement "We do more than just copy", because it implies that Totalip is more than a generic product. In 2006 the Brussels Court of Appeal held that Merck Sharp & Dohme's slogan for Zocor (simvastatine), "The original saves lives", was unfair, misleading and subjective, mainly because the slogan was found to suggest that generic pharmaceutical products did not save lives or were of inferior quality.(3) However, in this case the court held that Pfizer's statement clearly related to the company's activities – that is, that Pfizer develops innovative pharmaceutical products aside from marketing the generic Totalip. The statement was not found to be of influence on doctors either. Within the same context, the court also rejected EG's claim that the slogan "totally cheap" implied that Totalip was the cheapest generic on the market. In the court's view, this indicated only that this product was cheaper than Lipitor.
While the patent dust between Pfizer and Ranbaxy has long settled, there was clearly no love lost between Pfizer and EG on how the products should be advertised. Both parties were eager to present their product as the first generic on the market, as this traditionally confers an important advantage over competing generic products. The president of the Brussels Commercial Court assessed both parties' claims and neither passed his scrutiny. Rulings on advertising such as this are usually factual in nature. However, the court's relaxed views on doctors' awareness of the regulations on reimbursement and their implications will be of interest to pharmaceutical marketeers.
For further information on this topic please contact Kristof Neefs or Christophe Ronse at ALTIUS by telephone (+32 2 426 1414), fax (+32 2 426 2030) or email (firstname.lastname@example.org or email@example.com).
(2) Pursuant to Belgian rules on the reimbursement of medicines, each reimbursed product is assigned to a reimbursement category. Category A comprises life-saving drugs, such as cancer or diabetes treatments, which are fully reimbursed. Category B comprises therapeutically important drugs, such as antibiotics, which are normally reimbursed for only 75%. The chapter in which the product is reimbursed determines the therapeutic indications for which the product is reimbursed and the level of control thereof. Reimbursement in Chapter 1 implies that all indications mentioned in the patient information leaflet are reimbursed without limitation, while reimbursement in Chapter 4 implies that certain restrictions will apply, and that reimbursement is subject to prior control by the sickness fund of the patient.
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