Cleary’s Pharma Bites: Disparagement

Cleary Gottlieb’s Pharmaceutical, Biotech, and Healthcare group is pleased to present the first installment of its “Pharma Bites” series: Disparagement.

• Pharmaceutical regulatory compliance rules generally prohibit disparagement of rival products. However, financial or liability exposure for companies violating these rules is limited.
• National competition authorities (notably in France and Italy) have begun considering disparagement as an antitrust theory of harm. This development is noteworthy:
  • These antitrust precedents have so far applied a low bar for what is deemed disparaging, essentially encompassing any statement about a competitor’s product that is false or ought reasonably to have been known to be misleading.
  • Antitrust fines imposed for disparagement have been significant e.g., Roche and Novartis together received fines of €183 million in Italy and €444 million in France (other fines have been in the range of €15 - 40 million).
• The European Commission is actively exploring creating an EU antitrust disparagement precedent of its own (as exemplified by the ongoing investigation of Teva), which could lead to additional disparagement investigations, particularly if fueled by complaints.

To learn more about this topic and view the related slide deck, click here.

Cleary’s Pharma Bites series seeks to provide critical updates on a wide range of antitrust, regulatory, arbitration, and litigation issues in the pharmaceutical and biotechnology space. 

To learn more about Cleary’s Pharmaceuticals and Biotechnology practice, click here.