Allergan asks SCOTUS to take a hard look at pharma's controversial 'hard switch' tactic
- In a 197-page brief to the Supreme Court, Allergan has asserted that penalizing companies for trying to maximize returns on innovation quashes new innovation. It would like the high court to reverse a previous court decision on the company's efforts to force patients to switch from Namenda IR, which went off patent in July, to Namenda XR, a reformulated version of Namenda with a different patent that doesn't expire until 2025.
- The background: In a case that started in September 2014, New York Attorney General Eric Schneiderman succeeded in his antitrust suit against Actavis (which later purchased and rebranded as Allergan). Actavis was sued for attempting to force patients to switch to its new Alzheimer's medication, Namenda (memantine) XR, and limiting availability of Namenda IR.
- The Supreme Court is mulling Allergan's request to consider whether a company can decide to pull a drug off the market as generics prepare to enter it, and introduce another formulation of the drug under a different patent.
Schneiderman's success in his suit against Allergan/Actavis was hailed as a victory by consumer advocates. Many activists and some physicians were riled by Actavis' efforts to promote once-a-day Namenda XR over twice-a-day Namenda IR, especially considering the cost differentials. Also, although Namenda XR appeared to be more convenient, there were issues related to insurance coverage and other factors that made it less convenient for individual patients.
Now, Allergan wants to revisit the issue—with the Supreme Court. On one side, Allergan is defending "innovation" and the need to maximize profits in order to fuel additional ground-breaking R&D. But on the other side, one legal analyst makes the point that reversing the decision could be interpreted as an endorsement of the practice of "product hopping" or "forced switching," which could have adverse effects for patients, the generic drug industry, and competition in general.
This case is certain to be watched closely by the industry and could have broad, sector-wide implications if the Supreme Court decides to take the case.