Pharma Deals Divide High Court

Abstract

The Supreme Court appeared unsure last week about whether brand-name pharmaceutical companies can pay potential generic competitors to keep their cheaper products off the market for a certain number of years. The issue is at the heart of a case before the high court involving AndroGel, a treatment for low testosterone in men, and an agreement between its original developer and a company that wanted to market a generic copy. The drug industry says “pay for delay” deals do not delay generic drugs, but the federal government disagrees. Lawyers representing the Obama Administration argued before the Court that the deals violate federal antitrust law and result in higher drug prices that cost consumers billions of dollars each year. “It’s an agreement not to compete,” Deputy Solicitor General Malcolm L. Stewart told the justices. “Agreements of this sort should be treated as presumptively unlawful.” But several justices called that approach unnecessarily ...