ANTITRUST’S HIDDEN HOOK IN DRUG PRICE INCREASES
By Michael A. Carrier1
High drug prices have recently been in the news. The media, public, and politicians have lamented significant price increases. At the same time, such developments have been met with explanations that antitrust cannot address price hikes. Critics contend that U.S. courts do not regulate price and that antitrust law is ill-equipped to referee these disputes.
But what if antitrust could address price hikes? What if the price increases were a result of anticompetitive conduct? In that case, antitrust could play a role, addressing the anticompetitive behavior that resulted in high prices. This article focuses on two price hikes that received significant attention, showing how conduct such as settlements, government petitions, exclusive dealing, and restricted distribution systems contributed to the increases.2
The article first introduces Daraprim, which witnessed a 5000-percent price increase shortly after its distribution system was significantly restricted. It then analyzes the EpiPen, which underwent sustained price increases at the same time the company engaged in a patent settlement, citizen petition, and exclusive dealing.