“PHARMA GREED KILLS.” “PEOPLE OVER PROFIT” “Heather Bresch: THE FACE OF GREED”

So resounds the public outrage toward Mylan Inc. and the company’s CEO Heather Bresch after having steadily increased the price of EpiPen from $100 in 2007 to $600 last May.¹ Critics argue that the price to manufacture the injector has not increased during that time, that the product itself has not changed, that research and development costs cannot justify the decision, and that the price hikes were from a company with a loose grip on monopoly power anticipating the imminent arrival of a generic.² The price of EpiPen is unjust, so they say, as it excessively profits the manufacturer at the expense of vulnerable patients.

But is our indignation at such actions righteous? Perhaps this isn’t so clear. As one might argue, Mylan is simply acting in the company’s own self-interests, furthering personal gain without breaking the law. Indeed, Mylan is simply reaping the fruits of being a patent holder (albeit now expired), receiving one’s due for innovating a product that saves lives. Should we break the chain of incentives that results in America being an incubator of pharmaceutical progress? Perhaps it is the FDA who is to blame and not Mylan, for they have been slow to approve a generic to compete against the name-brand EpiPen.³ In sum, as Americans we ought to follow the law, and Mylan has simply done so to its own benefit.⁴

Arguing the same point from a second angle, no one is coercing the consumer to purchase the pharmaceutical. Of course, those that believe they need the EpiPen for their survival will find it unjust when the price point is more difficult to meet. But shouldn’t Mylan have the freedom to profit from creating such an important product that patients will pay a premium? A fair price should be seen as nothing more than that which “is agreed upon in the course of a voluntary transaction.”⁵ The choice to purchase a product at a seller’s price is thus wholly at the discretion of the buyer.⁶

Or again from a third angle, within the economic system of capitalism we should want and expect companies to seek monopoly power.⁷ The profit motivations of the marketplace teach companies to find new ways to cut costs, attract buyers with better products and services, and ultimately add to the bottom line. Who can find fault with a company that acts like a company? The impulse to profit is natural. As Bresch herself has argued in response to the controversy, “I am running a business. I am not hiding from that.”⁸

Without knowing it, the protesters quoted above owe a debt to the influence of the Christian tradition on the conscience of the West. We immediately recoil at such sharp increases in prices, especially to suppliers of products to vulnerable populations, precisely because of our cultural inheritance of Christianity. From the Old Testament’s injunctions against oppressing one’s neighbor for profit, to Christ’s conversion of Zaccheus the oppressive tax collector, to Christ’s command, “as you wish that others would do to you, do so to them,” the Christian tradition has continually wrestled with how to embody and enact justice in the marketplace.⁹

Thomas Aquinas, writing within this tradition in his Summa Theologica in the 13th century, anticipates the three objections I outlined above, responding within Article 1, “Whether it is lawful to sell a thing for more than its worth?” Aquinas succinctly argues for the notion of a “just price,” saying, “It is altogether sinful to have recourse to deceit in order to sell a thing for more than its just price, because this is to deceive one’s neighbor so as to injure him.”¹⁰ The unjust price, therefore, injures one party to the transaction while advantaging the other party. The just price, by contrast, honestly and equitably distributes losses and gains to both seller and buyer.

Aquinas’s responses to the above arguments can be summarized and applied to Mylan’s situation as follows. First, merely following the dictates of a human law is not sufficient for the action to be virtuous. Only when the “Divine law” is followed, which may or may not align with human law, can one be considered virtuous. For, “according to the Divine law, it is reckoned unlawful if the equality of justice be not observed in buying and selling.”¹¹

Second, mutual agreement between buyer and seller is insufficient for justice. Simply because EpiPen is a great product and is extremely useful to the buyer does not warrant unjust enrichment of the seller at the expense of the buyer. Catholic economist and theologian Albino Barrera, drawing on the wisdom of the Catholic tradition, argues that some transactions can be a result of “economic compulsion.”¹² Indeed, Pope Leo XIII in Rerum Novarum, argues that the agreed upon price can be unjust as a result of the conditions of the buyer. Writing about the context between employer and worker, “If through necessity or fear of a worse evil, the workman accepts harsher conditions because an employer or contractor will give him no better, he is the victim of force and injustice.”¹³ Of course, the worse evil in the case of EpiPen is the fear of death as a result of anaphylactic shock, the same fear that Mylan is exploiting in their practice of price gouging.

Third, although the profit motive can often be of benefit to society, it also has the potential to result in injustice. The desire of companies to seek and exploit power to enrich themselves at the expense of the vulnerable, as Aquinas argues, does not proceed from “nature but from vice.”¹⁴ Though these desires may be “common to many who walk along the broad road of sin,” this popularity does not excuse sin, but rather gives CEO’s and companies responsibility to earn a modest profit for the common good. This critique also falls on the regulators and legislators, who have the responsibility to quell the inherent proclivities to injustice in the profit motive. As Catholic economist Daniel Finn argues, “Markets are neither natural nor morally neutral; they are constructed, and the choice of rules and regulations for markets (their juridical framework) has a deep impact on human fulfillment.”¹⁵

The actions of Mylan and Bresch, intepreted through the lens of the Christian tradition, should no doubt be condemned. The price increase of EpiPen unjustly shifts dollars in the pockets of vulnerable patients to the shareholders and employees of Mylan. This criticism of Mylan’s actions, however, leaves open questions of more mundane and murky implementations of the just price. For example, part of the genius of capitalism lies in its ability to communicate information to consumers through the price mechanism, the vast majority of prices remaining fixed regardless of the purchaser. Is it unjust for companies to charge the same price for a sandwich to a hungry man in poverty than to a hedge fund manager? Or, take the example of a manufacturer in a poor country. Is it unjust for a company to pay a different wage to an employee in China than to an employee in America, even if the wage paid to the Chinese employee significantly raises her living conditions? These are difficult questions, leaving Daniel Finn with the fascinating claim, “How to apply the just-price doctrine in markets is perhaps the greatest intellectual challenge facing Catholic economic ethics today.”¹⁶

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