Walgreen and Kroger File Remicade® Antitrust Action Against J&J

As we previously reported, in 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 had engaged in an anticompetitive scheme relating to its Remicade® (infliximab) product.  Yesterday, Walgreen and Kroger filed an antitrust lawsuit in the same court, with similar allegations, against J&J and its subsidiary, Janssen. The complaint alleges that in 2017, when Pfizer received FDA approval to sell Inflectra®, an infliximab biosimilar, Pfizer sold Inflectra® at a 15% discount to the wholesale acquisition cost (“WAC”) of Remicade®, and that when Merck later received approval in 2017 to sell Renflixis®, another infliximab biosimilar, Merck set the price at a 35% discount to the WAC of Remicade®, a price that Pfizer matched.  The complaint further alleges that despite these discounts, Pfizer and Merck have garnered less than 5% of total infliximab unit sales in the United States because of J&J’s “exclusionary scheme.”

According to the complaint, within weeks of Inflectra’s launch, J&J began to deploy what is referred to as its “Biosimilar Readiness Plan,” the core features of which are “exclusionary contracts, anticompetitive bundled discounts and coercive rebate policies that foreclosed Pfizer’s access to the overwhelming majority of potential consumers, despite the lower prices of Inflectra.”  According to the complaint, “even though Pfizer’s and Merck’s products are significantly less expensive than Remicade and have no clinically meaningful differences from them, the overall price of infliximab has actually increased since the entry of these two additional competitors.”

Stay tuned for more news on the antitrust allegations related to Remicade®.

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