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The Prescription Drug Pricing Moment: Using Public Health Analysis to Clarify the Fair Competition Debate on Prescription Drug Pricing and Consumer Welfare

Published online by Cambridge University Press:  01 January 2021

Abstract

Fair competition law and public health law talk past each other when discussing pharmaceutical pricing and distribution. The former cannot agree on the relevant definition of consumer welfare. The latter does not fully comprehend the highly complex but inherently collective nature of pharmaceutical drug acquisition in the United States. This essay proposes to inject public health discourse into this debate to enrich it, focus it, and render it more accessible to those who must live by its outcome.

Type
Symposium Articles
Copyright
Copyright © American Society of Law, Medicine and Ethics 2017

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References

American Public Health Association, “What Is Public Health?” available at <https://www.apha.org/what-is-public-health> (last visited January 20, 2017).+(last+visited+January+20,+2017).>Google Scholar
Salop, S. C., “Question: What Is the Real and Proper Antitrust Welfare Standard? Answer: The True Consumer Welfare Standard,” Loyola Consumer Law Review 22, no. 3 (2010): 336-353, at 336, available at <http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1061&context=lclr> (last visited January 20, 2017).Google Scholar
Id., at 336-37.Google Scholar
See Heyer, K., Welfare Standards and Merger Analysis: Why Not the Best?, Economic Analysis Group Discussion Paper, March 2006, available at <https://www.justice.gov/sites/default/files/atr/legacy/2007/09/28/221880.pdf> (last visited January 20, 2017) (arguing for “a total welfare standard — i.e., a standard that considers a merger's likely effect on all members of society, not simply the consumers of products produced by the merging firms.”).+(last+visited+January+20,+2017)+(arguing+for+“a+total+welfare+standard+—+i.e.,+a+standard+that+considers+a+merger's+likely+effect+on+all+members+of+society,+not+simply+the+consumers+of+products+produced+by+the+merging+firms.”).>Google Scholar
It is not every issue that, in one week, focused both congressional concern and focused popular cultural concern. Congressional concern as expressed by the call for Committee hearings on and inquiry into the pricing of certain pharmaceuticals. See Edney, A., “Mylan CEO to be Grilled by Congress Over EpiPen Price Surge,” Bloomberg Politics, September 14, 2016, available at <https://www.bloomberg.com/politics/articles/2016-09-14/mylan-ceo-will-appear-before-house-oversight-panel-next-week> (last visited January 20, 2017). Popular cultural concern was expressed by the knowing laugh at the 2016 Emmy Awards broadcast when Jimmy Kimmel, the program's host, noted, while passing out brown bags stuffed with peanut butter and jelly sandwiches, “If you're allergic to peanuts, well, I guess this is goodbye, because we can only afford one EpiPen.” See S. Rense, “The Story Behind Jimmy Kimmel's Sharpest Joke at the Emmys,” Esquire, September 19, 2016, available at <http://www.esquire.com/lifestyle/health/videos/a48703/epipen-joke-emmys-transparent/> (last visited January 20, 2017); see also K. Don, “Jimmy Kimmel's EpiPen Joke at the 2016 Emmys Was Honestly Very Much Appreciated,” Romper, available at <https://www.romper.com/p/jimmy-kimmelsepipen-joke-at-the-2016-emmys-was-honestly-very-much-appreciated-18614> (last visited January 20, 2017) (observing that “[n]ot only was [the EpiPen] joke incredibly well-timed, but it was also well received by the audience.”). (last visited January 20, 2017); see also K. Don, “Jimmy Kimmel's EpiPen Joke at the 2016 Emmys Was Honestly Very Much Appreciated,” Romper, available at (last visited January 20, 2017) (observing that “[n]ot only was [the EpiPen] joke incredibly well-timed, but it was also well received by the audience.”).' href=https://scholar.google.com/scholar?q=It+is+not+every+issue+that,+in+one+week,+focused+both+congressional+concern+and+focused+popular+cultural+concern.+Congressional+concern+as+expressed+by+the+call+for+Committee+hearings+on+and+inquiry+into+the+pricing+of+certain+pharmaceuticals.+See+Edney,+A.,+“Mylan+CEO+to+be+Grilled+by+Congress+Over+EpiPen+Price+Surge,”+Bloomberg+Politics,+September+14,+2016,+available+at++(last+visited+January+20,+2017).+Popular+cultural+concern+was+expressed+by+the+knowing+laugh+at+the+2016+Emmy+Awards+broadcast+when+Jimmy+Kimmel,+the+program's+host,+noted,+while+passing+out+brown+bags+stuffed+with+peanut+butter+and+jelly+sandwiches,+“If+you're+allergic+to+peanuts,+well,+I+guess+this+is+goodbye,+because+we+can+only+afford+one+EpiPen.”+See+S.+Rense,+“The+Story+Behind+Jimmy+Kimmel's+Sharpest+Joke+at+the+Emmys,”+Esquire,+September+19,+2016,+available+at++(last+visited+January+20,+2017);+see+also+K.+Don,+“Jimmy+Kimmel's+EpiPen+Joke+at+the+2016+Emmys+Was+Honestly+Very+Much+Appreciated,”+Romper,+available+at++(last+visited+January+20,+2017)+(observing+that+“[n]ot+only+was+[the+EpiPen]+joke+incredibly+well-timed,+but+it+was+also+well+received+by+the+audience.”).>Google Scholar
Blumenthal, D. and Squires, D., “Drug Price Control: How Some Government Programs Do It,” Commonwealth Fund, May 10, 2016, available at <http://www.commonwealthfund.org/publications/blog/2016/may/drug-price-control-how-some-government-programs-do-it> (last visited January 20, 2017).+(last+visited+January+20,+2017).>Google Scholar
Price discrimination is selling the same good at different prices to different customers. See Berndt, E. R. and Newhouse, J. P., “Pricing and Reimbursement in the US Pharmaceutical Markets,” in Danzon, P. M. and Nicholson, S., eds., Oxford Handbook of the Economics of the Biopharmaceutical Industry (Oxford University Press, 2012): at 201, 233.Google Scholar
Both Part B pharmaceutical coverage and Part D prescription drug plans encompass Medicare beneficiaries at all income levels.Google Scholar
Medicare's brief experiment with the Least Costly Alternative (LCA) policy marks its most recent foray into a type of reference pricing, an experiment abruptly terminated by litigation in December 2009. See Conti, R. M. and Rosenthal, M. B., “Pharmaceutical Policy Reform — Balancing Affordability with Incentives for Innovation,” New England Journal of Medicine 374 (2016): 703-706, at 705; see also Hays v. Leavitt, 583 F. Supp. 2d 62 (D.D.C. 2008), aff'd sub nom. Hays v. Sebelius, 589 F.3d 1279 (D.C. Cir. 2009) (ruling the LCA Policy as inconsistent with the Medicare statute); see also Medicare Payment Advisory Commission, Report to Congress: Medicare and the Health Care Delivery System, MedPac 88 (June 2015), available at <http://www.medpac.gov/docs/default-source/reports/june-2015-report-to-the-congress-medicare-and-the-health-care-delivery-system.pdf?sfvrsn=0> (last visited January 20, 2017) (reporting Congress would need to grant that statutory authority to the Secretary of Health and Human Services in order for LCA to be tried again).CrossRefGoogle Scholar
Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066 (amending Title XVIII of the Social Security Act).Google Scholar
Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 (2010).Google Scholar
See Marciarille, A. M., “Go Ask Alice,” Missouri State of Mind (January 19, 2013), available at <http://www.marciarille.com/2013/01/go-ask-alice.html> (last visited January 20, 2017) (discussing how Medicare beneficiaries end up in Medicare Part C).+(last+visited+January+20,+2017)+(discussing+how+Medicare+beneficiaries+end+up+in+Medicare+Part+C).>Google Scholar
See Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066 (amending Title XVIII of the Social Security Act).Google Scholar
See Conti, and Rosenthal, , supra note 11, at 704.Google Scholar
Carrier, M. A., Levidow, N., and Kesselheim, A. S., “Using Antitrust Law to Challenge Turing's Daraprim Price Increase,” Berkeley Technology Law Journal 31 (2016).Google Scholar
Federal Trade Comm'n v. Cardinal Health, Inc., 12 F.Supp.2d 34, 55 (D.D.C.1998) citing U.S. Dep't. of Justice & Federal Trade Comm'n, Horizontal Merger Guidelines Section 3.0 (1992).Google Scholar
See Pollack, A., “Drug Goes from $13.50 to a Tablet to $750, Overnight,” New York Times, September 20, 2015, available at <http://www.nytimes.com/2015/09/21/business/a-huge-overnight-increase-in-a-drugs-price-raises-protests.html> (last visited January 20, 2017).+(last+visited+January+20,+2017).>Google Scholar
See Olson, L. M. and Wendling, B. W., Effect of Generic Drug Competition on Generic Drug Prices During the Hatch-Waxman 180-Day Exclusivity Period (F.T.C. Bureau of Econ., Working Paper No. 317, 2013), available at <https://www.ftc.gov/sites/default/files/documents/reports/estimating-effect-entry-generic-drug-prices-using-hatch-waxman-exclusivity/wp317.pdf> (last visited January 20, 2017).CrossRef+(last+visited+January+20,+2017).>Google Scholar
See Brennan, Z., “FDA to Prioritize Generic Drug Applications for ‘Sole Source’ Products,” Regulatory Affairs. Professionals Society, March 14, 2016, available at <http://raps.org/Regulatory-Focus/News/2016/03/14/24532/FDA-to-Prioritize-Generic-Drug-Applications-for-%E2%80%98Sole-Source%E2%80%99-Products/> (last visited January 20, 2017).Google Scholar