The Court of Appeal (CoA) has upheld findings that two pharmaceutical companies charged “excessive and unfair prices” for a “lifesaving” medicine over a decade.
The CoA decided yesterday that the Competition and Markets Authority (CMA) and the Competition Appeal Tribunal (CAT) were right to find that Auden Mckenzie and Actavis UK had “abused a dominant position” by charging unfair prices for hydrocortisone tablets between 2008 and 2018.
The CMA’s initial decision back in July 2021 also found that the companies had entered into “anti-competitive agreements” with competitors Waymade and AMCo, and the CMA imposed penalties totalling £266.5m.
From £1 to £72
The CMA said that in 2007, hydrocortisone tablets cost the NHS less than £1 per pack - but in 2008, Auden bought the licences from their former owner, “de-branded” the drugs and relaunched them as generics costing around £4 a pack.
Over eight years, Auden and Actavis – which took over Auden’s business in 2015 – increased the per-pack price of hydrocortisone tablets to a peak of £72.
Read more: Appeal court reinstates mammoth hydrocortisone cartel fines
The NHS’s annual spending on the drug rose from half a million pounds in 2007 to “over £80 million in 2016”, the CMA said, but the price increases “did not reflect any increase in costs or investment” in the product.
It added that Auden and Actavis bought other companies’ versions of hydrocortisone tablets to “delay competition that could have brought prices down”, and that even after other firms entered the market, Actavis “retained market power” and continued to charge excessive prices.
Read more: ‘Highly concerning’: Hydrocortisone manufacturers’ £100m fine overturned
Hydrocortisone tablets are sold in 10mg and 20mg strengths, and the CMA found two “abuses of dominance” and two “anti-competitive agreements” in relation to each strength.
In 2023, the CAT dismissed Auden and Actavis’ appeal against the abuse of dominance findings and upheld the penalties issued, subject to a reduction of £26m to reflect a period when parent company Allergen did not control the business.
Read more: Hydrocortisone manufacturers face record £130m fine as appeal rejected
The following year, the CAT decided to overturn the fines issued for the anti-competitive agreements because it found that the CMA failed to “use the powerful process of cross-examination” on witnesses, “fatally” undermining its judgment.
But the CoA later overturned the CAT’s decision following the CMA’s appeals, and found that the CAT’s “procedure had been ‘unjust’”.
Read more: Accord vows to appeal CMA case on 10,000% hydrocortisone price hiking
The firms appealed to the CoA against the CAT’s 2023 judgment, but were yesterday dismissed after the court found that “none of their grounds of appeal ‘get near’ to displacing the CMA’s and the CAT’s conclusions on the infringements”.
“This means all of the CMA’s findings of infringement against the firms have now been upheld on appeal,” the CMA said.
“Exploiting the NHS”
CMA competition enforcement executive director Juliette Enser said yesterday’s ruling should “send a clear message that we will not tolerate businesses ripping off the NHS”.
“After many years of fighting this case in the courts, this ruling shows once again we were right to take action against firms exploiting the NHS by charging excessive and unfair prices for a lifesaving medicine relied on by thousands of patients,” she said.
“We will continue this fight and come down on any business breaking the law.”
Read more: Hydrocortisone overpricing: Appeals court upholds £2.8m fine
It comes after a CMA investigation into Vifor Pharma led to the company making a “voluntary payment of £23 million to the NHS” and correcting “potentially misleading communications” about its IV iron medicine.
And it follows the Independent Pharmacy Cooperative Network last year submitting a complaint to the CMA “regarding a suspected anti-competitive agreement between the Department of Health and Social Care and Community Pharmacy England” in the 2025/26 funding deal.
