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European Court performs U-turn on legality of prescribing incentive schemes

By Mark Pownall

PCTs have been given the legal green light to go ahead with prescribing incentive schemes to promote drug switching by a decision of the European Court of Justice.

The Medicines and Healthcare Regulatory Agency, fighting a case brought by the Association of the British Pharmaceutical Industry, successfully argued that a European Directive outlawing the schemes did not apply to schemes aimed at limiting public spending.

An earlier’ opinion’ from the court reported in Pulse earlier this year had ruled against the schemes because they promoted some medicines over others within the NHS, but the final judgment from the court said the schemes were legitimate if they were implemented by the national public health authorities to reduce their public-health expenditure.

‘Article 94(1) of Directive 2001/83 must be interpreted as not precluding financial incentive schemes … implemented by the national public health authorities in order to reduce their public-health expenditure and designed to encourage, for the purpose of treating certain conditions, the prescription by doctors of specific named medicinal products,’ the judgment concludes.

The preliminary ruling is a defeat for the pharmaceutical companies who brought the challenge to prescribing incentive schemes, as they tend to promote older, cheaper generic drugs over newer branded treatments.

Prescribing incentive schemes for lower-cost medicines, such as generic simvastatin, have been ruled as legal in the EU