antibiotics are available in the majority of clinical circumstances. 72 In fact,
the antibiotics drugs are so inexpensive that despite accounting for 6. 4
percent of all U.S. prescriptions in 2013 by volume, they composed only 2. 6
percent of prescriptions by value. 73 Second, market uptake is limited, due in
part to public health efforts to curb unnecessary antibiotic prescriptions. 74 In
order to prevent antibiotic resistance, the use of novel antibiotics are
systemically discouraged, except for in the most extreme cases. 75 Thus,
profitability is limited.76 Ironically, antibiotics are sometimes seen as
“victims of their own success.” 77 While they are often more effective than
their alternatives, their use must be limited to maintain their efficacy and
yield an individual and public health benefit. 78 With the rise of antibiotic
education and stewardship programs, the market for new antibiotics will
continue to be appropriately restricted. 79 Third, the lower rate of ROI on
antibiotics, as compared to other products, is due in part to their short-term
therapeutic use. Not only are antibiotic treatments temporary by nature, they
completely cure the target disease as well. 80
Fourth, the value of antibiotics cannot be appropriately quantified, as the
value of the drugs’ benefit extends beyond patient use—the broader
population also stands to benefit from the targeted use of new antibiotics by
not developing costly, and possibly deadly, antibiotic-resistant infections. 81
This public health value is not captured in willingness to pay and thus it is
not reflected in pricing models. 82 Aaron S. Kesselheim, an instructor in
medicine in the Division of Pharmacoepidemiology and
Pharmacoeconomics, Department of Medicine, at Brigham and Women’s
Hospital and Harvard Medical School, and Kevin Outterson, an associate
professor of law at the Boston University School of Law, both experts in
antibiotic resistance, contend that the “current legal structures and market
incentives unwittingly accelerate resistance in several ways, all rooted in the
mismatch between private and social value.” 83 They argue that the substantial
72. Id. at 278.
75. See E. Power, Impact of Antibiotic Restrictions: The Pharmaceutical Perspective, 12
CLINICAL MICROBIOLOGY & INFECTION 25, 29 (2006).
77. Spellberg et al., supra note 62, at 158.
79. Outterson et al., supra note 64, at 278.
80. Spellberg et al., supra note 62, at 158.
81. Outterson et al., supra note 64, at 278.
83. Aaron S. Kesselheim & Kevin Outterson, Improving Antibiotic Markets for Long
Term Sustainability, 11 YALE J. HEALTH POL’Y, L. & ETHICS 101, 105 (2011).