JUDGE SIDES WITH DRUGMAKERS IN ANTITRUST IMPORTATION LAWSUIT
A federal judge has dismissed a Minnesota class action lawsuit that contends nine large drugmakers, including Pfizer, Eli Lilly and GlaxoSmithKline (GSK), violated antitrust laws in their efforts to suppress the importation of prescription drugs from Canada.
In dismissing the case, Judge Joan Ericksen of the U.S. District Court for the District of Minnesota ruled that the plaintiffs lack standing to challenge the alleged anticompetitive behavior. The importation of these drugs "is unlawful and, therefore, not the type of activity which federal antitrust laws were designed to protect," according to her recent decision.
The lawsuit, filed in May 2004 by a coalition of groups that included the Minnesota Seniors Foundation, contends the firms "engaged in a concerted course of conduct" designed to prevent brand name drugs purchased from Canadian pharmacies from entering the U.S.
Firms named in the suit included GSK, Pfizer, Abbott Laboratories, AstraZeneca, Boehringer Ingelheim, Eli Lilly, Merck, Novartis and Wyeth. The alleged anticompetitive actions included requiring Canadian pharmacies to certify that they are not selling the drugs to persons outside of Canada; monitoring the pharmacies' orders and limiting supplies to historic levels; creating blacklists of pharmacies suspected of selling to Americans; and directing wholesalers not to supply drugs to blacklisted dispensers.
The lawsuit was filed in reaction to drugmaker policies that limited the sales of certain products to some Canadian pharmacies on the basis that shipping unapproved drugs back into the U.S. poses safety problems.
Ericksen sided with the firms' basic argument on the illegality of importing drugs. Among other things, Canadian drugs fail to satisfy various U.S. labeling requirements, Ericksen said. Drugs purchased in Canada for personal use in the U.S. are misbranded if introduced into U.S. commerce because their labels do not bear the "Rx only" symbol prior to dispensing, the judge concluded. Canadian prescription drug products bear a "Pr" symbol, which despite the plaintiffs' arguments, is not interchangeable with the U.S. "Rx only" symbol, she said.