29 Am. J.L. & Med. 525 (2003)
Fake Pharmaceuticals: How They and Relevant Legislation or Lack Thereof Contribute to Consistently High and Increasing Drug Prices

handle is hein.journals/amlmed29 and id is 527 raw text is: American Journal of Law & Medicine, 29 (2003): 525-42
© 2003 American Society of Law, Medicine & Ethics
Boston University School of Law
Fake Pharmaceuticals: How They and
Relevant Legislation or Lack Thereof
Contribute to Consistently High and
Increasing Drug Prices
Merri C. Moken
I. INTRODUCTION
The use of pharmaceutical products in the United States has increased more than
the use of any other health resource from 1960 to 1990.1 In excess of 9,600 drugs
were on the market in 1984, and the Food and Drug Administration (FDA)
approves approximately 30 new drugs and countless new applications for alterations
of already existing drugs each year.2 In 2001, the $300 billion pharmaceutical
industry sold $154 billion worth of prescription drugs in the United States alone,
nearly doubling its $78.9 billion in sales in 1997.3 With such a rapid increase in
market domination and expenditures, the U.S. government and many hospitals have
focused their attention on the sales and pricing practices of pharmaceutical
companies, as well as other potential factors contributing to these escalating prices.4
One such cause of the steadily increasing prices of brand name pharmaceuticals is
the sale of fake or counterfeit pharmaceuticals (also called look-alike drugs).5
Fake pharmaceuticals are dru s sold as pharmaceutical company brand name
drugs, yet at a much lower price.  These counterfeits appear in several different
forms. They either contain a lesser amount of the real drug's active ingredient, or
they contain no active ingredient and are, instead, composed of substances varying
from talcum power to aspirin to poison.7 Fake pharmaceuticals generally look like
I   Susan Heilbronner Fisher, The Economic Wisdom of Regulating Pharmaceutical
Freebies,  1991 DUKE L.J. 206, 206 (1991) (citing John Mackowiak & Jean Paul Gagnon, Effects of
Promotion on Pharmaceutical Demand, 20 SOC. SCI. MED. 1191, 1191 (1985)).
2   Id. at 215.
3   Terry Carter, Drug Wars: Coalition Tactics Make Price Fight Look Like Battle Over
Tobacco, 88 A.B.A. J. 41,44 (2002).
4   Fisher, supra note 1, at 206-07.
5   Phoebe Carter, Annotation, Validity, Construction, and Effect of State Statute Regulating
Sale of Counterfeit or Imitation Controlled Substances, 84 A.L.R. 4TH 936 (1991).
6   See International Pharmaceutical Firms Face Slow Drug Approval Process, Problems With
IPR Protection, 21 E. ASIAN EXECUTIVE REP. 19 (1999) [hereinafter EAST ASIAN EXEC. REPORTS].
7   EAST ASIAN EXEC. REPORTS, supra note 6; Tom Masland & Ruth Marshall, A Really
Nasty Business: Fake Pharmaceuticals Look Like the Real Thing-But They Can Be Lethal,

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