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By its Decision of 7 December 2016 the Competition and Markets Authority (“CMA”) found that Flynn Pharma’s prices (and those of its supplier Pfizer) for phenytoin sodium capsules in the UK were excessive and therefore an abuse of a dominant position contrary to section 18 of the Competition Act 1998 (“CA98”). Phenytoin is an off-patent drug used to treat epilepsy. Phenytoin capsules were marketed by Pfizer under the brand name Epanutin until 2012. In 2012 Pfizer transferred its marketing authorisations to Flynn as part of new arrangements for the distribution of the drug. Flynn then ‘de-branded’ the product the effect of which was to remove it from price regulation under the Pharmaceutical Price Regulation Scheme (“PPRS”). Once outside the PPRS the cost of the drug to the NHS increased eye-catchingly from approximately £2 million in 2012 to £50 million in 2013, £42 million in 2014 and £37 million in 2015, a period during which the number of users was declining. The Decision contained directions that that Flynn (and Pfizer) should reduce their prices of Phenytoin capsules with effect from 23 January 2017.
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Ronit Kreisberger acted for Flynn Pharma.
Rob Williams acted for the Competition and Markets Authority.
Brendan McGurk acted for the Department of Health.
The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.