The Italian Supreme Administrative Court has just released an articulated judgment (n. 1306 of April 1, 2016) focused on the notion of “therapeutic
equivalence” of pharmaceutical products, a concept which, as specified by the administrative judge, is conceptually and legally distinct from that of “equivalent drug” and “biosimilar drug”.
”The origin of the notion of “therapeutic equivalence”
The legal definition of “therapeutic equivalence” has appeared following an opinion (AS440 27/12/2007) rendered by the Authority for Competition and Market in the field of public tenders for the supply of medicinal products. The Competition Authority found that it is not correct to hold public tenders for the supply of medicines, grouping and distinguishing drugs with active ingredient patented by off-patent drugs; in fact this division has the practical effect of distorting competition. The Competition Authority had also stated that contracting authorities should structure tenders for drugs that are based on different active principles (whether patented or not) and which, according to the scientific community, have the same therapeutic function. This reasoning is based on the assumption that “… the comparison between the active substances having the same therapeutic properties […] could still achieve short-term savings, without paying the medium-term competitive costs resulting from inadequate dissemination of generic drugs”.
Subsequently, the legislator invested AIFA (the Italian Authority for Drugs) of the task of evaluating from time to time the existence of the requirement of therapeutic equivalence in relation to different medicinal products considered (art. 15, paragraph 11 ter of Legislative Decree 95/2012 converted into Law no. 135/2012).
Therapeutic equivalence does not pesuppose bioequivalence
The applicant also contested the fact that the two drugs showed differences in pharmacokinetics and pharmacodynamics, being pharmacologically different, therefore it was not possible to assess their therapeutic equivalence, since the latter would presuppose the bioequivalence. On this point, the Consiglio di Stato has made it clear that the therapeutic equivalence is a distinct concept from the bioequivalence or bio-similarity and that the first does not presuppose the second.
Bioequivalent are in fact only the biological drugs that are based on the same active ingredient and for which it is established the absence of significant clinical differences, on the basis of pharmacokinetic and pharmacodynamics studies. For bioequivalent drugs it is not necessary to assess the therapeutic equivalence, since once the bioequivalence is demonstrated, the therapeutic equivalence implied.
”The evaluation of the therapeutic identity can concern also drugs with different active ingredients and “… it is quite possible that the pharmacokinetics and pharmacodynamics are not identical for the two products, being a task of the competent body assessing whether different modes of action of the two pharmaceutical products can significantly affect their therapeutic equivalence. “
A few days after the publication of the judgment in question, AIFA has also released new guidelines for the evaluation of therapeutic equivalence.
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Acknowledgements: Lexology – Eunomia – Marta A. M. Fusco
