21 - Product Switching: Valid Commercial Strategy or Anti-Competitive Consumer Coercion? A Legal and Comparative Perspective

Summary

Though the introduction of a new product is generally considered pro-competitive,¹ competition authorities have in recent years, and in specific cases, revisited the validity of this assumption. In particular, scrutiny over ‘product switching’ strategies have presented ‘some of the most nuanced issues’ regarding the interface of competition and intellectual property (IP) law.² Specifically, in the context of the pharmaceutical industry, the reformulation and introduction of follow-on drugs have been a focus of particular attention due to the patent-based structure of the industry as well as the potential detrimental effects of related anti-competitive conducts on both competitors and consumers. After all, this sector deals with human health, and thus, consumer welfare concerns are predominantly at issue.