A/HRC/23/42 on income levels (equity based pricing), which can be profitable for companies due to increases in volume and attractive to developing countries due to reductions in prices.47 In practice, however, tiered pricing has been limited to certain medicines such as ARVs, vaccines and contraceptives.48 Moreover, given the lack of guarantee of low prices and the diminished role for government decision-making in such pricing policies, alternatives such as promoting robust market competition have been recommended as good practices with a view to lowering the prices of medicines.49 6. Competition law and policies 36. As part of their obligation to ensure affordability of medicines, States employ competition laws to take action against companies that abuse a dominant position in the market. This would include measures against such practices as charging excessive prices, restricting other companies from accessing the market, collusive tender practices, and restrictive agreements.50 For example, in 2002, one country’s competition commission found that charging excessively high prices for ARVs was an illegal abuse of market dominance.51 37. During his consultations, the Special Rapporteur learnt that competition law is one of the most commonly used methods to reign in excessively high prices charged by pharmaceutical companies. States should apply competition law to monitoring mergers between generic and brand name pharmaceutical companies, which could potentially block future market competition. Competition law represents an accountability mechanism for legal redress under the right-to-health framework and provides a powerful tool to check wrongful practices by pharmaceutical companies that engage in anticompetitive practices, which can also negatively affect access to medicines. 38. Competition laws that are well formulated and enforced could also counter anticompetitive practices at every stage of the pharmaceutical supply chain.52 For example, such laws can address attempts by originator companies to influence suppliers in order to restrict supply of active pharmaceutical ingredients to potential competitors, or prevent agreements between larger pharmaceutical companies from using distribution strategies that reduce wholesaler competition, which would restrict smaller companies’ access to the market, adversely impacting on the price of medicines. States should also consider including representatives of civil society groups on the panels of competition authorities, which has been demonstrated to have positive results in reducing the prices of medicines in some States.53 39. Evidence from developed and developing countries shows that competition, including among generic companies, can reduce the prices of essential medicines. In the 47 48 49 50 51 52 53 12 Access to Medicine Foundation, Access to Medicine Index 2012 (2012), p. 50. Prashant Yadav, “Differential Pricing for Pharmaceuticals: Review of current knowledge, new findings and ideas for action” (United Kingdom Department for International Development (DFID), 2010), pp. 5-6. Suerie Moon et al, “A win-win solution?: A critical analysis of tiered pricing to improve access to medicines in developing countries”, Globalization and Health (2011), vol. 7, No. 39, p. 9. United States Federal Trade Commission, Agreements Filed with the Federal Trade Commission under the Medicare Prescription Drug, Improvement, and Modernization Act of 2003: Overview of Agreements Filed in FY 2012, A Report by the Bureau of Competition (2013). Available at http://www.ftc.gov/os/2013/01/130117mmareport.pdf Sean Flynn, “Using Competition Law to promote access to medicines”, Program on Information Justice and Intellectual Property (2008), p. 2. Hawkins, “Competition Policy” (see Note 30 above) p. 41. Ibid., p. 14.