Differential pricing of pharmaceuticals and retail competition under the Robinson-Patman Act

Abstract

Emphasis on cost containment by third-party payors has intensified economic competition within the health care system, creating powerful market forces which retail pharmacists had not envisioned a few years ago. Hospitals and alternative delivery systems now sell prescription drugs in direct competition with retail pharmacists. These entities are able to purchase their pharmaceuticals from manufacturers at prices far below those of the retailers. Retail pharmacist plaintiffs allege that such activities violate the Robinson-Patman Act which prohibits price discrimination. Retail pharmacists have achieved landmark victories in decisions establishing that nonprofit, state and local governmental hospitals reselling pharmaceuticals in competition with retail pharmacies are not exempt from the Act. This Article demonstrates that despite these victories, plaintiffs will have difficulty proving an actual violation of the Act by manufacturers and hospitals. Plaintiffs must establish competitive injury as well as refute the meeting competition defense. Retail pharmacists might discover that the Robinson-Patman Act is not the ally they had hoped for; instead, they should concentrate on innovative alternatives which will allow them to compete in an evolving health care system.