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George Addy, Erika Douglas, Mar 26, 2014
The Canadian Competition Bureau has been signaling a renewed interest in competition enforcement in the pharmaceuticals industry, and more broadly, issues at the forefront of intellectual property and competition law. While enforcement in this space has seen significant attention from other major antitrust regulators, this marks a shift for the Bureau. Most significantly, the Bureau has commenced an inquiry into whether alleged product-hopping conduct amounts to an abuse of dominance under the Competition Act. This article explains product hopping, surveys the major U.S. arguments as to why it may raise competition concerns, and then considers the Bureau’s potential case.
In contemplating a product-hopping case, the Bureau joins a crop of recent antitrust enforcement efforts around the globe directed at variations of product hopping conduct. In November 2012, the U.S. Federal Trade Commission filed a brief as amicus curiae in the private product hopping case Mylan Pharmaceuticals, Inc v Warner Chilcott Public Limited Co., which recently settled. In July 2010, the European Union General Court upheld the European Commission’s finding in a seminal product-hopping case against AstraZeneca. Enforcers in less prominent jurisdictions have also been getting in on the action; in February 2014 the Australian Competition and Consumer Commission announced a product-hopping case against Pfizer, and the U.K. Office of Fair Trading issued a decision against Reckitt Benckiser in April 2011.