Maryland’s bill to decrease the price of generic drugs deemed unconstitutional

By Lindsey Collins

A federal appeals court has struck down Maryland’s landmark drug-price-gouging law after deeming it unconstitutional, according to the U.S. Court of Appeals for the Fourth Circuit.

The court voted  2-1 that the law, which would have allowed the state to regulate off-patent and generic drug prices, is unconstitutional because it violates the commerce clause of the U.S. Constitution.

“Although we sympathize with the consumers affected by the prescription drug manufacturers’ conduct and with Maryland’s efforts to curtail prescription drug-price-gouging, we are constrained to apply the dormant commerce clause to the Act,” Judge Stephanie D. Thacker wrote for the majority opinion, according to The Washington Post. “We hold that the Act is unconstitutional under the dormant commerce clause because it directly regulates transactions that take place outside Maryland.”

The bill faced scrutiny after The Association for Accessible Medicines (AAM) sued  Attorney General Brian E. Frosh and Dennis R. Schrader, the state’s previous acting health secretary, in hopes of blocking the law.

“As AAM has always maintained, this law, and any others modeled from it, would harm patients because the law would reduce generic drug competition and choice, thus resulting in an overall increase in drug costs due to increased reliance upon more-costly branded medications,” AAM President Chip Davis Jr. told The Baltimore Sun.

“We are evaluating all options with regard to next steps,” Frosh said, according to the Washington Examiner.  “We remain committed to pursuing efforts to eliminate price-gouging and to safeguarding Marylanders’ access to prescription drugs.”

Last year, Maryland became the first state to give its attorney general the power to take legal action against drug companies who have increased the price of off-patent and generic drugs, according to the Associated Press.

The bill followed in the wake of soaring drug costs across the nation.  Drug prices increase an average of 10 percent a year, according to a 2017 Credit Suisse report.

More than 300 of the roughly 1,400 generic drugs had at least one “extraordinary” price increase of 100 percent or more between the first quarter of 2010 and the first quarter of 2015, a 2016 study by the U.S. Government Accountability Office found.

A U.S. Senate report on EpiPen prices found that the drug’s cost is five times more expensive than it was in 2007, according to The Post. Frosh’s proposal followed both the report and a national, public health crisis over opioids and prescription drugs, declared by President Donald Trump in October.

“The skyrocketing price of EpiPen’s really affected me,” said Monica Cipriano, a sophomore psychology major. “I’m allergic to all nuts, including peanuts, and not having access to something like that could kill me.”

When the law first passed to monitor the drug prices, Frosh said in The Post that he hopes the legislation will address what has become a potentially fatal situation for many Maryland residents.

The bill would have allowed Maryland’s attorney general to take legal action against pharmaceutical companies if he deemed a price unjustified, considering manufacturing and distributing costs. Manufacturers would have had 45 days to respond to a complaint from the attorney general, following a required meeting with the company before filing the suit, according to The Post.

“I think [passing a law to help with drug prices] would be a great thing moving forward,” said Matthew Regan, a senior journalism major. “People who desperately need these drugs should not be taken advantage of.”


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