West Virginia Attorney General Patrick Morrisey has petitioned the court to enforce a subpoena against Mylan as part of an investigation into the skyrocketing price of its EpiPen.
The petition, filed in Kanawha Circuit Court, outlines the increasing price against a backdrop of failed attempts to introduce an EpiPen competitor, litigation over intellectual property and dominance Mylan has over the epinephrine auto injector market.
The Attorney General believes the publicly known facts about Mylan establish probable cause for an investigative subpoena, which his office issued Aug. 26. Mylan initially agreed to cooperate, but has since failed to respond to the majority of the subpoena.
“I have a statutory responsibility to investigate any potential antitrust violation,” Attorney General Morrisey said. “Consumers lose when competition doesn’t flourish. My office owes it to consumers to be their watchdog and turn over every rock to ensure fair play.”
The Attorney General’s subpoena also inquires about rebates Mylan paid to participate in the state’s Medicaid program. Specifically, it cites public reports suggesting Mylan paid rebate amounts typically associated with “non-innovator” drugs, even though brand-name drugs like the EpiPen generally pay higher, “innovator” drug rebates.
The petition suggests such conduct, if proven, could subject Mylan to a potential Medicaid fraud action under state law.
Mylan, which operates a manufacturing plant near Morgantown, acquired the exclusive rights to market the EpiPen in 2007. The single-use, epinephrine auto injector has become a must-have for counteracting the effects of an allergic anaphylactic reaction.
The EpiPen’s price skyrocketed thereafter – from about $100 for a twin pack in 2009 to a current price tag in excess of $600. With the need for as many as three EpiPens and a shelf life of just one year, the price hikes have been difficult for many to endure.