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Hickenlooper, Colleagues File Amicus Brief Urging Court to Uphold Medicare Drug Negotiation

Sep 21, 2023

Inflation Reduction Act provision will lower cost of prescription drugs for millions of Americans

WASHINGTON – U.S. Senator John Hickenlooper joined Senators Amy Klobuchar, Peter Welch, and other colleagues in submitting an amicus brief to the District Court for the District of Columbia in the case of Merck & Co. v. Becerra, urging the court to uphold the constitutionality of the Inflation Reduction Act, empowering Medicare to negotiate drug prices with pharmaceutical companies. 

“Americans are fed up with being gouged by the pharmaceutical industry,” said Hickenlooper. “The court needs to recognize this legal challenge for what it is: a desperate attempt to hold onto power and extort consumers with high prices.” 

Thanks to the Hickenlooper-backed Inflation Reduction Act, Medicare is now able to negotiate prescription drug prices for the first time ever. Last month, the Centers for Medicare and Medicaid Services (CMS) announced the first ten drugs selected for price negotiation. 

Since the law’s passage, drug manufacturers and trade associations have filed eight lawsuits challenging the bill’s constitutionality. Merck and Co., which develops the diabetes medication Januvia, is one of the manufacturers suing the Department of Health and Human Services. 

An excerpt from the brief is below: 

Merck now attempts to accomplish through judicial action what it could not through the legislative process. Merck’s position in this litigation boils down to the argument that the United States Constitution somehow prohibits the federal government from negotiating the prices of the products it purchases. Merck seeks to prevent reform of a purchasing process that Congress itself made, but now, according to Merck, cannot unmake, or even amend for the benefit of the American public and the American taxpayer. As a matter of constitutional law, that position is baseless. Congress improves laws all the time, and it has the right and indeed the duty to do so. The Program takes nothing from Merck: not its drugs and not its patents. And the Program likewise does not coerce Merck to do or say anything: like every other market participant, it may sell its products at a price the buyer thinks is fair, or it may not.

Last week, Hickenlooper spoke on the Senate floor to applaud CMS’ selection of the first ten drugs up for negotiation. In June, Hickenlooper’s bill to lower the cost of generic drugs, the Increasing Transparency in Generic Drugs Act, passed out of committee. 

The amicus brief, co-signed by Senators Amy Klobuchar, Peter Welch, Tammy Baldwin, Richard Blumenthal, Sherrod Brown, Catherine Cortez Masto, Richard J. Durbin, John Fetterman, Jacky Rosen, Jeanne Shaheen, Debbie Stabenow, Chris Van Hollen, and Elizabeth Warren, is available HERE.


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