Congresswoman Tammy Duckworth has asked the Department of Justice to investigate Mylan Pharmaceuticals for potentially violating antitrust laws in their sale of discounted EpiPens to schools, citing STAT’s investigation into the subject.
STAT reported last month that Mylan had sold the devices, used to treat potentially fatal allergic reactions, at a discount to schools — provided that the schools agree not to purchase competitive products “in the next twelve (12) months,” according to company documents.
Legal experts told STAT that such provisions may run afoul of antitrust regulations, especially considering the fact that Mylan controls a large share of the epinephrine auto-injector market.
“I am particularly concerned that Mylan’s EpiPen4Schools Program may unreasonably suppress competition using aggressive, anticompetitive contractual stipulations,” Duckworth (D-Ill.) wrote in a letter to the DOJ dated September 1.
Duckworth’s request comes amid a storm of congressional outrage over the high price of EpiPens; the price has risen about 450 percent since 2004, according to data from Elsevier’s Gold Standard Drug Database. Lawmakers are calling on federal agencies and congressional committees to intervene and demanding detailed information from Mylan about its business practices.
Mylan told STAT that the exclusivity requirement is no longer part of its discount program but did not specify when it was removed. One order form signed by a school district on April 28, 2016, contained the provision.
“Although Mylan denies engaging in such anticompetitive business practices, these assertions appear to be inconsistent with the requirements stipulated in Mylan’s own certification form for the EpiPen4Schools program,” Duckworth wrote.
Duckworth also sent the letter to the Department of Education and the Federal Trade Commission, and has not yet heard back from any of the departments, a spokesperson said.
The US Attorney General’s Office declined to comment. The FTC confirmed receipt of the letter and declined to comment further.
EpiPens made up 89 percent of the epinephrine auto-injector market last year, according to IMS Health.
On Friday, Senator Ron Wyden, (D-Ore.) and Representative Frank Pallone, (D-N.J.) sent a separate letter to the secretary of the Department of Health and Human Services, requesting information about how EpiPens were treated in state Medicaid programs. The lawmakers wrote that there was evidence that Mylan was under-reimbursing state Medicaid programs for EpiPens. Senator Amy Klobuchar, (D-Minn.) said in a press release that this may have cost Minnesota over $4 million.
