Federal Trade Commission v. Lundbeck, Inc.
Eighth Circuit
650 F.3d 1236 (2011)
Lundbeck, Inc. (defendant) acquired Indocin IV and NeoProfen, the only two federally approved drugs for treating a life-threatening infant heart condition called patent ductus arteriosus, and sharply raised the price of each after acquiring them; the two drugs had different compositions and side-effect profiles, and neonatologists in hospitals decided which drug a patient received. Lundbeck stopped promoting Indocin and focused on NeoProfen after Indocin became vulnerable to generic competition. The FTC (plaintiff) alleged Lundbeck's acquisition of both drugs was an antitrust violation because the drugs competed in the same product market; Lundbeck offered testimony from seven neonatologists that their drug choice turned entirely on medical factors, not cost, and the district court dismissed for failure to establish a relevant market.
Whether two functionally similar drugs treating the same medical condition must be considered part of the same antitrust product market even where evidence shows a low cross-elasticity of demand between them.