HC Rescues Lupin on Price cap on powdered form of asthma drug

New Delhi: The Delhi High Court directed the Centre not to take any coercive measure against Indian pharma major Lupin Ltd which has challenged a notification capping the prices of the powdered form of its asthma drugs.

The court, however, clarified that its order would not amount to stay of the price fixation notification.

Justice Rajiv Shakdher rejected the government's contention that stopping it from taking any coercive steps would affect larger public interest as the company might sell its medicine at a price higher than the cap imposed.

The court said if public interest would be affected, why has the Centre not taken any action against the company which is yet to adhere to the price cap on the powdered form of its asthma medicine despite the notification coming into effect in April 2017.

"Why was the Department of Pharmaceutical (DoP) sleeping for a year? If public interest was an issue you should have taken action by now. What action have you taken till now," it asked.

The court also said if the company is not protected against coercive action for not adhering to the price cap, it would be difficult for Lupin to recover loss incurred by selling its drug at a lower price.

It also issued notice to the Centre, the National Pharmaceutical Pricing Authority (NPPA) and DoP and sought their response by October 29.

Lupin had in April last year moved the DoP seeking a review of the price fixation of the powdered form of its asthma drugs and since it was yet to be decided, it moved the high court seeking expeditious disposal of its review plea.

The company has claimed that the price of the powdered form of its drugs was capped by clubbing it with the metred dose inhaler (MDI) version, where it is inhaled in aerosol form, of the same medicine. It has also challenged the clubbing of the two forms of its medicine.

During arguments, Additional Solicitor General Maninder Acharya and central government standing counsel Ripudaman Bhardwaj said there was nothing wrong with clubbing the two forms as the salt involved was the same and only the mode of inhalation was different.

To this, the court asked why the Centre fixed different prices for the capsule and tablet form of the same drug.

Lupin in its plea has also challenged an April 2018 notification which has again revised the price of the powdered form of its asthma drugs based on last years wholesale price index. It has contended that the prices were capped without following the proper procedure prescribed under the Drug Price Control Order (DPCO) 2013.