16 October 2003
The Competition Commission has found that pharmaceutical firms
GlaxoSmithKline South Africa (Pty) Ltd (GSK) and Boehringer Ingelheim (BI)
have contravened the Competition Act of 1998. The firms have been found to
have abused their dominant positions in their respective anti-retroviral
(ARV) markets.
In particular the Commission has found the firms have engaged in the
following restrictive practices:
The Commission has decided to refer the matter to the Competition Tribunal
for determination.
Menzi Simelane, Commissioner at the Competition Commission, says," Our
investigation revealed that each of the firms has refused to license their
patents to generic manufacturers in return for a reasonable royalty. We
believe that this is feasible and that consumers will benefit from cheaper
generic versions of the drugs concerned. We further believe that granting
licenses would provide for competition between firms and their generic
competitors."
"We will request the Tribunal to make an order authorising any person to
exploit the patents to market generic versions of the respondents patented
medicines or fixed dose combinations that require these patents, in return
for the payment of a reasonable royalty. In addition, we will recommend a
penalty of 10% of the annual turnover of the respondents' ARVs in South
Africa for each year that they are found to have violated the Act."
Simelane said these practices violate the Competition Act of 1998's
prohibitions against excessive pricing (section 8(a)), refusing access to
essential facilities (section 8(b)) and exclusionary acts that have an
anticompetitive effect that outweighs technological, efficiency or other
pro-competitive gains (section 8(c).
"Indeed the very goals of our Competition Act - promoting development,
providing consumers with competitive prices and product choices, advancing
social and economic welfare and correcting structural imbalances - have
been made difficult in this context by the refusal of the respondents to
license patents."
The original complaint in this matter was filed by Hazel Tau and others
alleging that GSK and BI were charging excessive prices to the detriment of
consumers for their patented ARV medicines.
GSK and BI hold patents on certain antiretroviral (ARV) medications used to
treat HIV/AIDS. GSK holds patents in South Africa on AZT (branded as
Retrovir), Lamivudine (branded as 3TC) and AZT/Lamivudine (branded as
Combivir). BI holds patents in South Africa on Nevirapine (NVP) (branded
as Viramune).
ENDS
Prepared by: Beachhead Media & Investor Relations
Dani Cohen 021 469 9000 / 082 897 0443
Jennifer Cohen 011 214 2400 /082 468 646
On behalf of: The Competition Commission
Further info: Zolile Ntukwana
Manager, Compliance Division at the Competition Commission
082 774 6017
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