AUTH/2539/11/12: Pharmacosmos v Vifor Pharma — exclusivity clauses in HCP consultancy contracts (No breach) | PMCPA Case

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Key facts

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Case number	AUTH/2539/11/12
Parties	Pharmacosmos A/S v Vifor Pharma
Issue	Alleged exclusivity/non-compete clauses in HCP consultancy contracts; concern about potential “retainer” style arrangements and Clause 20 compliance
Applicable Code year	2012
Complaint received	07 November 2012
Case completed	22 January 2013
Appeal	No appeal
Clause(s) considered	20.1
Decision	No breach
Additional sanctions	None stated

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

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Pharmacosmos A/S complained that exclusivity (non-compete) clauses in Vifor Pharma’s consultancy contracts with health professionals breached the ABPI Code.
Pharmacosmos said several physicians told them they could not consult for Pharmacosmos due to pre-existing contracts with Vifor.
Pharmacosmos also raised concerns that some arrangements with NHS service providers might amount to prohibited “retainer” style arrangements (also referencing IFPMA/EFPIA codes), and that exclusivity could create competition, NHS practical, and patient safety issues.
The complaint relied on anecdotal feedback and an inter-company statement from Vifor: “We cannot comment on whether or not individuals can work on projects for both Vifor and Pharmacosmos at the same time as it will depend on the terms of their particular contracts in question”.
Vifor denied wrongdoing, stated Clause 20.1 does not prohibit non-compete provisions, and said UK templates/SOPs contained no exclusivity clauses; only a very small number of legacy agreements involving global colleagues contained legitimate non-compete provisions for confidentiality/sensitive interests.

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No breach of the Code was found.
The Panel considered the complaint under Clause 20.1 (the allegations appeared to relate to 20.1).
The Panel ruled Pharmacosmos had not established, on the balance of probabilities, that Vifor used exclusivity clauses in a way that meant no genuine service was expected or that there was no legitimate need.

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