In September 2020, the French competition authority (l’Autorité de la concurrence, or “FCA”) fined Novartis and Roche after finding that, on the one hand, along with Roche-affiliate Genentech, the companies had abused their dominant market position by misleading French health authorities to prevent them from supporting and legalizing the off-label use of Avastin® in the treatment of age-related macular degeneration (“AMD”) to protect sales of Lucentis®, an AMD drug marketed by Novartis. On the other hand, the FCA also found that Novartis had abused its dominant position by disparaging Avastin® to healthcare professionals. Both Avastin® and Lucentis® were developed by Genentech. Lucentis® was developed for the treatment of AMD whereas Avastin had been developed to treat cancer. It was however also used by physicians to treat AMD, for a lesser price. According to the FCA, in order to preserve their profits from the sale of Lucentis® the drug companies conducted a campaign to discredit the use of Avastin to treat AMD, and to this end, attempted to prevent or delay a study by the National Authority for the Safety of Medicines (l’Autorité nationale de sécurité du medicament (ANSM)) comparing the efficacy of Avastin and Lucentis. Following its investigation into the matter, the Competition Authority fined Novartis € 385 million, and Roche and Genentech €59 million.
On appeal, the decision, and with it the fine, was overturned. The Cour d’Appel de Paris ruled on February 16, 2023 that for much of the relevant period, Avastin and Lucentis could not have been in competition with one another because new legislation had placed Avastin outside the scope of permissible prescription for the treatment of AMD. The court also narrowed the scope the relevant market, limiting it to hospital prescriptions, since Avastin® was only available in this setting. The court also dismissed the evidence supporting abusive conduct, finding that the public statements by Novartis and Roche had not been misleading, and that Roche’s failure to provide the drug samples requested by ANSM could not have had an anti-competitive effect.