European Court supports ABPI’s prescribing incentives fight
pharmafile | February 16, 2010 | News story | Sales and Marketing | ABPI, prescribing incentives
The ABPI has come out on top in the opening salvo of its unprecedented European legal challenge against prescribing incentive schemes.
Primary care trusts and strategic health authorities have increased their use of incentive payments to doctors to take patients off branded medicines to cheaper alternatives.
But the European Court of Justice (ECJ) has supported the UK pharma industry’s view that such schemes are illegal under European law.
Advocate general Nilo Jääskinen agreed that Article 94(1) of Directive 2001/83/EC – covering, among other things, the promotion of medicinal products for human use – prevented the NHS from paying doctors to prescribe generics.
The aim of this legislation is “to preserve the independence and objectivity of a doctor’s prescribing decisions”, he said.
It is not a full judgment, although his opinion will go towards making a final decision on the issue, which is expected later this year.
Jääskinen is at pains to emphasise that his proposed interpretation of the law does not mean that the NHS is precluded from controlling expenditure on medicines.
But he suggests it may need to think about other measures, such as government price freezes and price reductions and the promotion of generics.
The ABPI launched its action against the MHRA after high profile incidents such as the East of England SHA ordering a mass switch of patients away from Pfizer’s Lipitor to the cheaper generic simvastatin.
Among several items of note in his decision, Jääskinen points out that “even the Department of Health recognises that financial incentives are not appropriate to reward individual doctors” in its own document “Strategies to achieve cost-effective prescribing: Interim Guidance for Primary Care Trusts”.
The UK “appears to be the only Member State that has prescribing incentive schemes involving the substitution of specifically named medicines”, he added.
The ECJ opinion also makes clear that it makes no difference that the ABPI’s challenge is motivated by self-interest.
“In my view the self-regarding nature of ABPI’s motives is legally irrelevant,” Jääskinen writes, going on to call the pharma industry “lawful” and “socially useful”.
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