Trinko emphasized the importance of attention to an industry’s regulatory regime in determining the role of antitrust law and suggested a possible “expansion of the contours” of the Sherman Act in certain regulatory contexts. This Note explores Trinko’s implications for antitrust enforcement in the pharmaceutical industry which, though heavily regulated, lacks an industry regulator that polices competition. It focuses on product hopping, a strategy launched by manufacturers of brand name drugs to undermine competition from generic substitutes. Parties have challenged product hopping as anticompetitive, and the judicial treatment thus far has hinged on the presence of consumer coercion. However, such an approach disregards the pharmaceutical industry’s unique market structure and its regulatory regime. This Note inquires into the real anticompetitive harm from product hopping through the lens of Trinko. It proposes that courts undertake the antitrust analysis with an eye toward the industry’s regulatory regime—particularly, state drug product selection (DPS) laws—and the legislative policy judgment it embodies, in addition to engaging such traditional antitrust concerns as promoting innovation and preserving free competition. This Note develops a framework that gives manufacturers freedom to innovate, responds to the limits of antitrust law, and punishes product hoppers that subvert the specific type of competition state legislatures sought to establish in fashioning DPS laws.
