Pharmaceutical (Re)capture

This Article makes the case that pharmaceutical companies, along with other powerful corporate actors in the pharmaceutical industry, are in effect designing their own markets, often at the expense of, rather than in pursuit of, public health. The influence exerted by these corporate actors extends beyond traditional forms of regulatory capture, rising to what this Article refers to as pharmaceutical capture—a concept that encompasses the exercise of holistic and systemic control over the operation of pharmaceutical markets and their regulation. After developing a framework for thinking about pharmaceutical capture, this Article uses the evolution of the opioid epidemic as a case study of capture at work. It argues that the patterns of corporate influence highlighted in the case study are not unique to opioids, but rather are structural features of U.S. pharmaceutical markets. A popular political response to concerns about the power exerted by corporate actors in the pharmaceutical industry has been to pin the blame on government regulation as impeding the discipline of the “free market.” But pharmaceutical markets rely on government regulations to function, and this push for deregulation is in many cases simply an effort to substitute one governance structure for another more favorable to incumbent corporate interests. This Article concludes that it is not deregulation, but rather a redesign of regulation, that is needed to improve the public health impact of the pharmaceutical industry. Drawing lessons from pharmaceutical capture, it suggests guidelines for a regulatory recapture.