FEW CASES before the Supreme Court this session could have more direct impact on consumers’ pocketbooks than the drug industry dispute Federal Trade Commission v. Actavis. Generic drugs cost, on average, 85 percent less than brand-name drugs, and at the heart of the case is whether makers of brand-name drugs can pay to keep generic substitutes off the market. The government’s lawyers argue the practice — known as “pay-for-delay” agreements — violates antitrust laws and unduly adds $3.5 billion in health care costs annually. The court should agree.
Justices heard oral arguments in the case Monday, and a ruling is expected in June. It will likely hinge on how the court views the $20 million to $30 million the FTC suggests Belgian firm Solvay has paid Actavis each year since 2006 not to produce a generic version of AndroGel, a testosterone replacement therapy.