AUTH/2272/10/09: Alcon v Allergan — Retrospective rebate scheme for glaucoma eye drops (No breach on appeal) | PMCPA Case

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Key facts

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Case number	AUTH/2272/10/09
Parties	Alcon Laboratories (UK) Limited v Allergan Ltd
Issue	Retrospective cash rebate scheme to NHS organisations linked to unit market share thresholds for glaucoma eye drops
Products	Lumigan, Ganfort, Combigan
Applicable Code year	2008
Complaint received	07 October 2009
Case completed	24 February 2010
Final decision	No breach of the Code (appeal successful on all points)
Clauses considered (final)	2, 9.1, 18.5
Sanctions	None stated
Notable procedural point	Panel sought advice from an external expert (Mr Alan Sheppard, Managing Director, Ascher Resources Ltd) in a personal capacity

Reviewed by Dr Anzal Qurbain (FFPM) — ABPI Final Signatory

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Alcon complained about Allergan’s retrospective cash rebate scheme offered to NHS organisations linked to prescribing/dispensing volumes (unit market share thresholds) for glaucoma eye drops (Lumigan, Ganfort, Combigan).
Rebates increased as higher unit market share thresholds were met (with a cap). Payments were made retrospectively (quarterly or annually).
Rebate monies were paid into the NHS organisation’s business account and managed by a fund management executive (typically three NHS employees). The agreement stated the fund was intended to develop community ophthalmic services and/or benefit patients with ophthalmic conditions, but this was not exclusive (could be used for indirectly linked purposes).
Alcon alleged the scheme would incentivise switching and compromise prescriber discretion, and argued it was not within the Code’s historic exemption for price/discount trade practices.
The Panel considered the scheme subject to the Code and initially ruled breaches (including that the rebate was effectively a donation/grant/benefit in kind linked to promotion). Allergan appealed.
The Appeal Board accepted the scheme was subject to the Code overall, but concluded the rebates were a contractual financial arrangement and that there was no evidence of undue pressure on individual prescribers.

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Final outcome (Appeal Board): No breach of the Code.
No breach of Clause 18.5.
No breach of Clause 9.1.
No breach of Clause 2.
(Panel stage only) The Panel had ruled breaches of Clauses 18.5, 9.1 and 2, but these findings were overturned on appeal.

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