08 Nov EpiPen Pricing and Jewish Law
Public attention has recently been drawn to the skyrocketing price of EpiPens, which has risen almost 400% since being acquired in 2007 by pharmaceutical company Mylan. EpiPens quickly and easily deliver the medicine Epinephrine that can save the lives of people having an allergic reaction. Because of their easy use and immediate effect, people with strong allergies carry EpiPens with them at all times, in case of emergency. The rising cost has created a growing burden on allergy sufferers. Yet the rise in retail price does not correspond to rising manufacturing costs. EpiPens are extremely cheap to make. Mylan, the company that manufactures EpiPens, is taking advantage of its patent to increase its profits and research budget. What does Jewish law have to say about this? I found two responsa on a related topic.
The Mishnah (Yoma 38a) describes the actions of the Garmu family of priests during the Second Temple era. They had a secret way of cooking the showbread and would not teach it to anyone else. The rabbis brought in other bakers from Alexandria to duplicate the Garmu method, with unsuccessful results. The Temple had to double the Garmu family’s wages in order to bring them back. Initially the rabbis decried the secretiveness of the Garmus. The Gemara (ad loc.) says that the family responded that they knew the Temple would be destroyed and did not want someone to use their technique for an idolatrous temple. The rabbis appreciated this answer and praised the family.
Rav Yitzchak Zilberstein (Chashukei Chemed, Yoma 84a, Avodah Zarah 28a) quotes the Meiri’s comment to this text. The Meiri says that if the community sees a religious benefit in someone teaching knowledge or a skill to others but he refuses to teach, the community may fire him from his position and appoint someone else. But if he has a good religious reason for refusing, he should remain firm in his refusal and trust that God will support him.
Rav Zilberstein deduces that, absent a religious justification to withhold the information, an expert is obligated to teach others for the benefit of the community. If you know how to heal even a non-fatal disease, you must share that knowledge. Similarly, absent a religious benefit to the community, an expert has every right to maintain his professional secrets. A chef cannot be forced to reveal his secret ingredient to the public.
Rav Asher Weiss (Responsa Minchas Asher 3:126) similarly writes that we are obligated to heal people with both fatal and non-fatal illnesses. Someone can be compelled to disseminate any knowledge that can increase healing. Both Rav Weiss and Rav Zilberstein quote the following passage as proof.
The Gemara (Yoma 84b) tells the following story, which is interesting for multiple reasons: Rabbi Yochanan suffered from tzefidna (a tooth disease that could travel through the body and prove fatal). He went to a certain gentile lady who attended to him on Thursday and Friday. He said: “What about tomorrow?” She replied: “You will not need treatment.” He asked: “But what if I do need it?” She replied: “Swear to me that you will not reveal the remedy.” He said: “To the God of Israel I will not reveal.” She told him the remedy and the next day he revealed it in a public lecture. But did he not swear to her? He swore that he would not reveal it to the God of Israel, but to the people of Israel he will reveal it. But is there not a desecration of God’s name? He told her from the beginning (after she revealed the secret).
Consider the implications. Rabbi Yochanan learned a woman’s unique method of healing a disease which he revealed to the public without concern for her. The Talmud Yerushalmi (Avodah Zarah 2:2) continues the story with two versions of the ending: either the woman committed suicide or converted to Judaism. According to the first version, Rabbi Yochanan’s disclosure of her process destroyed her medical practice, depriving her of her livelihood and her important position in society. According to the second version, she was so impressed that Rabbi Yochanan gave away that valuable information for free, out of concern for public health, that she was inspired to convert to Judaism. Either way, and despite the important issues it raises, the Talmudic passage is clear that when a medical treatment saves lives, it can be revealed despite the loss such a revelation causes its owner.
Rav Zilberstein mentions briefly, and Rav Weiss at greater length, that a doctor and inventor have the right to earn a living from their discoveries, even a very generous living. However, they have no right to prevent the public from accessing the medical treatment they need. The doctors’ and inventors’ livelihoods cannot come at the cost of other people’s lives.
As I attempt to apply this to EpiPens, I think we have to distinguish between two cases. As we mentioned, the medicine is relatively inexpensive. EpiPens are valuable because of the delivery mechanism, i.e. the method. If no one else can duplicate that method, then EpiPens must be available widely at an affordable price. If the manufacturer raises that price so high above the cost of manufacture that many people will be unable to afford the product, then others have every religious right, even an obligation, to imitate and disseminate that method as long as they stay within civil law (e.g. without violating patent law or committing corporate espionage). Public health overrides private wealth.
If viable alternatives to EpiPens are available but not preferred for non-medical reasons, then the price can be raised as high as the manufacturer wants. People can get the same medical benefit from another product so there is no public health need that overrides the manufacturer’s right. It is not my place to opine on the viability of EpiPen alternatives. However, from my limited research, I believe that alternatives to EpiPens exist. Adrenaclick is a generic alternative that is less than half the price of EpiPen. Auvi-Q is another alternative that was pulled from the market last year but will return next year. Due to a combination of marketing pressures and prescription rules, doctors and consumers prefer EpiPens. However, if the alternatives are equally viable, then, by raising the price, the manufacturer of EpiPens is not preventing people from obtaining medical treatment. Doing so is within their rights, although they risk the loss of customers to generic alternatives.