Regional Administrative Court of Tuscany: recent judgment on biosimilars

16 Dicembre 2019

On November 26, 2019, the Regional Administrative Court of Tuscany (Tribunale Amministrativo Regionale – T.A.R.”, “Court”) ruled on the request for the invalidation of the Regional Council of Tuscany Resolution No. 457/2019 (“Resolution”) concerning the procedures for the supply and use of biosimilars in Tuscany.

The Resolution mainly provides for the use of biosimilars in healthcare facilities, both for new patients and for patients already in treatment with the correspondent originators.

Specifically, the Resolution was challenged for the following main reasons: (i) the unlawful introduction of automatic substitutability between biological and biosimilar medicines, and (ii) the breach of the principle under which the physician shall be free to prescribe the drug he/she considers appropriate.

The Court dismissed the appeal stating that the Resolution does not allow the pharmacist to automatically substitute the biological drug with one of its biosimilars (that is clearly prohibited by Article 15, paragraph 11-quater, of Decree Law No. 95/2012, converted into Law No. 135/2012) but rather the interchangeability between the two drugs. Interchangeability means the possibility for the prescribing physician to replace, once therapy has already begun, the originator drug (with an expired patent) with its own biosimilar, with the capacity to obtain the same clinical effect.

According to the Court, since the Resolution requires the physician to provide a summary and comprehensive justification to illustrate the reasons why he/she decides to continue using the originator instead of the biosimilar that was awarded in the public procurement procedure, this is not in breach of the prescriptive freedom of the physician. Indeed, the physician is still the person responsible for the final decision on the drug to be administered to the patient. Moreover, this motivation duty meets the need to ensure a fair balance between the protection of the prerogatives of the physician, the rights of the patient and the reasons behind the optimization and sustainability of public health expenditure.

In conclusion, the T.A.R. recognized the lawfulness of the Resolution, which is also consistent with the guidelines set out by the Italian Medicines Agency (AIFA) in its second position paper on biosimilars published on April 11, 2018.

This judgment is in line with the case law available so far on this topic and confirms the fundamental distinction between automatic substitutability and interchangeability of biosimilars/originators. Therefore, regional resolutions which provide for interchangeability between originators and biosimilars, granting in any case the physician’s right to prescribe the proper medicine to patients (regardless whether it is an originator or biosimilar) shall be considered to be compliant with Italian law.

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