In the wake of the controversy that erupted after pharmaceutical company Mylan’s decision to increase the retail price of EpiPens by more than 400 percent, at $600 per two-device pack, a call for investigations into the company’s potential violation of federal antitrust laws have launched from multiple sources, including members of Congress. Then there is New York Attorney General, Eric Schneiderman, who announced September 6 that his office would be investigating Mylan’s sales contracts with school systems in New York.
Over the years, Mylan’s EpiPen4Schools Program has provided more than 700,000 free EpiPens to more than 65,000 participating schools, a seemingly good-hearted and charitable act to help the U.S.’s already financially-strapped education system.
However, nothing ever comes truly free. Participation in Mylan’s program required schools to sign a contract agreement that they would not purchase products from Mylan’s competitors for a period of twelve months. This kind of condition can be considered an antitrust violation when set up by a monopolist.
And many people would argue that Mylan is no stranger to monopolistic practices. Mylan has previously fought against its competitor Teva Pharmaceutical Industries' application to the FDA for approval of its generic EpiPen, by filing a series of "citizen petitions" against Teva, as a way to slow down the approval process.
Michael Carrier, a law professor at Rutgers University who has written about Mylan’s attempts to federally halt approval of Teva’s product, explains that Mylan can be considered monopolistic due to its “significant market share in the epinephrine auto-injector market, believed to be close to 90%.”
Carrier predicts that Scheiderman’s actions are only the beginning of many investigations of state attorney generals across the country. He says, “My guess is that Mylan today is under a lot more scrutiny and is going to look at agreements like this a lot more carefully.”
In the meantime, Schneiderman has pledged to put “full resources of my office to this critical investigation.” He says, “No child's life should be put at risk because a parent, school, or healthcare provider cannot afford a simple, life-saving device because of a drug-maker's anti-competitive practices. … If Mylan engaged in anti-competitive business practices, or violated antitrust laws with the intent and effect of limiting lower cost competition, we will hold them accountable.”
