Supreme Court refuses to hear drug antitrust case

On June 26, the Supreme Court refused to hear a Federal Trade Commission antitrust suit that challenges the legality of a drug-marketing deal between brand-name pharmaceutical giant Schering-Plough and generic drug firm Upsher-Smith. Schering paid Upsher $60 million in 1997 to delay marketing a generic version of Schering's potassium supplement drug K-Dur 20 until 2001. The FTC challenged the legality of Schering's payment but lost the case last year in federal district court. It appealed the case to the Supreme Court, and in an unusual move, the other federal antitrust regulatory agency, the Justice Department, objected. Such deals are happening more often in the pharmaceutical industry, the FTC reports (C&EN, May 22, 2006, page 32). On the same day that the Supreme Court announced its decision, four members of the Senate Judiciary Committee introduced legislation to outlaw such settlements between brand-name and generic companies. FTC Commissioner Jonathan D. Leibowitz has vowed to continue challenging these deals. "Obviously, we're disappointed that the Supreme Court chose not to accept Schering," he says. But he hopes that "the commission can bring another case involving these anticompetitive settlements between brands and generics-one that the Supreme Court will take."