Senators seek FTC probe of Mylan's EpiPen practices

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Months into a bruising EpiPen pricing scandal, congressional scrutiny on Mylan continues to heat up. Top members of the Senate Judiciary Committee have called on the Federal Trade Commission to examine whether the company--already under several investigations--used anticompetitive practices to pad its revenues for its important epinephrine injector.

In a letter to Chairwoman Edith Ramirez, senators Chuck Grassley and Patrick Leahy requested that the FTC probe whether Mylan “engaged in any anti-competitive practices … and, if so, take appropriate action to safeguard patients.” For one example, the senators pointed to reports that the company’s contracts with schools don’t allow schools to purchase competing products.

In response, Mylan said that "there are no purchase requirements for participation in the program, nor have there ever been to receive free EpiPen Auto-Injectors" through its EpiPen4Schools initiative. The program has been responsible for the distribution of 700,000 free EpiPens since 2012, according to the company.

The agency should look into whether Mylan “engaged in questionable anti-competitive conduct, to include possible exclusionary conduct, exclusive contracting and other monopolistic behavior, to the detriment of millions of patients and the American taxpayer,” according to the letter.

To add to that trouble, Mylan faced a new call on Monday to repay the Department of Defense for its EpiPen overspending. Grassley, plus senators Richard Blumenthal and Amy Klobuchar, said the company should reimburse the DOD for the more than $50 million the department overspent as a result of the product’s misclassification during a 10-year period.

Both developments come on the heels of a Bloomberg report late last week that Mylan and a host of other generics companies are under Department of Justice investigation for potential price fixing. In response to that report, Mylan said in a statement that it “is and has always been committed to cooperating with the Antitrust Division’s investigation. To date, we know of no evidence that Mylan participated in price fixing.”

The company has already settled allegations that it overcharged Medicaid due to a misclassification. In quick response to September news about the federal program’s overspending, Mylan agreed to fork over $465 million in a DOJ deal that saw it admit no responsibility. The settlement didn't satisfy everyone, however. Some officials, including Blumenthal and West Virginia Attorney General Patrick Morrisey, said it’s not enough.

For the EpiPen maker, a potential FTC investigation would add to the mounting negative attention it’s faced since the first reports in August of steep EpiPen price hikes. In response to the criticism, it’s expanded its patient access program and unveiled a plan to roll out an authorized generic for half the price. It’s also defended its price by deflecting some of the blame to pharma middlemen that benefit from higher drug prices.