Antitrust and the Mylan Conspiracy

Posted by Social Science Research Network

Antitrust and the Mylan Conspiracy

By Daryl Lim (John Marshall Law School)

Abstract:     In an age of divisive politics, there has been a surprising amount of consensus on containing the cost of healthcare and ensuring adequate access to it. The Affordable Care Act’s name itself indicates the aspirations of a president who campaigned for its passage through Congress. While his successor could bring about its avowed demise, even he has been quick to promise cheaper drugs via free market principles and foreign competition.

That consensus permeates an ideologically archipelagian Congress as well. Last month the 21st Century Cures Act received overwhelming bipartisan support, with the Senate voting 94-5 and the House voting 392-26. The bill among other things, expedites drug and medical device approval. More treatment options in turn promises to reduce patient healthcare bills.

Access to medicine is an issue with visceral voter appeal. The logic of lowering drug prices is easily understood and its benefits immediately appreciated, particularly by an electorate frustrated by socio-economic inequity and anxious about their futures. On the other side, many who benefitted from that inequity made their fortunes in pharmaceuticals. Some by engorging themselves on the medically vulnerable.

Antitrust law aims to lower prices and increase consumer choice, and it will likely be used as a policy lever to control the cost of healthcare this year. The wave of populist angst that characterized much of 2016 will translate into harsher scrutiny of the drug industry. The political rewards of disgorging wealthy pharmaceutical companies will encourage the agency to stay the course under the new administration.

America’s rule of law was admired because it defended the downtrodden from the tyranny of unbridled capitalism. As far as the cost of healthcare is concerned, that age seems all but over. 2017 will continue to accentuate rising income inequality and economic dislocation. An antitrust policy that ensures robust competition in generics is a shot in the arm that will make its citizens stronger together, and on this issue, help make America great again.

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