French Competition Authority Fines Johnson & Johnson EUR 25 million for Hampering Market Entry of Generic Rivals
On 20 December 2017, the French Competition Authority (“CA”) imposed a fine of EUR 25 million on Janssen-Cilag and its parent company Johnson & Johnson (together “J&J”) on account of abusive conduct designed to stop and later restrict the development of generic competing products for its Durogesic® franchise. Durogesic® (fentanyl) is an opioid analgesic indicated for the management of severe chronic pain.
The CA found J&J guilty of the following practices:
- J&J repeatedly tried to convince AFSSAPS, the French health authority, to deny generic status to generic forms of fentanyl, even though that status had already been granted by the European Commission to a fentanyl-based product of Ratiopharm on the basis of a mutual recognition procedure instigated by that firm. J&J attempted to question the bioequivalence of Durogesic® and its generic rivals and also cast doubt on the qualitative and quantitative characteristics of the generic fentanyl products.
- J&J mounted a campaign disparaging generic versions of fentanyl with healthcare professionals. Building on a warning issued by the health authority, J&J allegedly spread what the CA described as an “alarmist message” among the healthcare professionals. The CA labelled J&J’s actions as a “smear campaign” (une “campagne de dénigrement”) that had pernicious effects on the market entry of generic versions of fentanyl.
The CA classified J&J’s actions as a serious competition law infringement and therefore decided to impose a heavy fine.
While the non-confidential version of the decision has not yet been made publicly available, the CA’s website features an extensive press release in both French and English.