Allegations of delayed generic entry for pharmaceuticals often give rise to antitrust issues. Such matters are typically focused on allegations that actions taken by other marketplace participants delayed the generic entry of small-molecule drugs, which can provide therapeutically equivalent treatment options to branded reference products at potentially lower prices. To promote the use of generics, most states have adopted generic “substitution” laws, which allow or require pharmacists to dispense the generic when available and cheaper. As a result, generics can experience rapid uptake following their introduction.
Like generics, biosimilars are recognized as a means of providing similar treatment options to originator biologics at potentially lower prices. Over the past decade, biologics have become increasingly important in the pharmaceuticals space – for example, as of 2021, nearly half of prescription drug spending in the U.S. was on biologics. While biosimilar competition is still in its early stages, with the first biosimilar having only been approved in March 2015, as of today there are approximately 50 US Food and Drug Administration-approved (FDA-approved) and commercially available biosimilars. Of the $260 billion spent on biologics in the U.S. in 2021, only $38 billion (14 percent) was spent on biologics facing biosimilar competition, while $181 billion (70 percent) was spent on biologics that may face future biosimilar competition. Of the $181 billion, $96 billion was spent on biologics for which biosimilars were in development as of 2021. Thus, there is a significant potential for further biosimilar competition in the coming years.
As the number of biologics has grown, there has also been an increase in litigation related to competition between originator biologics and biosimilars, such as recent matters pertaining to the originator biologics Stelara and Lantus. Notably, such litigations can impact the timing of biosimilar market entry. For example, the recent litigation for the originator biologic Humira resulted in multiple settlements with staggered U.S. launch dates for adalimumab biosimilars, which has led to allegations of delayed biosimilar entry. Thus, there seems to be a potential movement for biosimilars that is analogous to what has been observed for generics, where settlement agreements over patent litigations are being challenged as anticompetitive, or other business practices are being alleged as anticompetitive and causing delays in competition. Consistent with emerging competition-related litigation for biologics and biosimilars, antitrust agencies are also becoming increasingly focused on competition between originator biologics and biosimilars.
In litigation related to competition between originator biologics and biosimilars, questions around class certification, liability, and/or damages will require both plaintiffs and defendants to rely on assumptions regarding the anticipated uptake of biosimilars following market entry, and the anticipated pricing of biosimilars and originator biologics. While uptake and pricing trends following the introduction of generics has been widely studied (though still debated in the courts), such trends have been less studied for biosimilars. This paper looks to help further such analyses by exploring the uptake- and price-related experience of biologics and biosimilars, and examining how the competitive environments have evolved for different biosimilar entrants.