Maryland Petitions Supreme Court to Uphold Drug Pricing Law

This month, Maryland’s Attorney General Brian Frosh petitioned the Supreme Court to uphold the “first-in-the-nation” law against drug price-gouging.The law gives the attorney general the authority to review price information about generic drugs. If the state’s lawyers could show that prices were increasing too steeply, they could seek to order the prices reduced, or issue fines to the drug companies.

The Association for Accessible Medicines (AAM) filed a suit against the state in a US district court in Maryland last year, alleging the bill grants the state “unprecedented powers to regulate the national pharmaceutical market, violating the [US] Constitution and posing harm to vulnerable patient communities.”

In April 2018, a federal appeals court in Maryland ruled that the law, which was passed in 2017, was unconstitutional. In explaining her decision to bar the law from taking effect, Judge Stephanie D. Thacker wrote an opinion stating that “Maryland cannot, even in an effort to protect its consumers from skyrocketing prescription drug costs, impose its preferences in this manner.”

After the decision in late April, Frosh requested that a full federal appeals court rehear the case, explaining that “The resolution of this appeal will substantially affect the responses of state governments to a problem with both fiscal and public health dimensions: the rapidly rising cost of prescription drugs.”

In July, a federal appeals court declined to hear a petition to rehear the case, letting the previous ruling stand.

In reaching the decision to decline to rehear the case, 9 judges voted against, 3 judges voted in favor, and 2 judges did not vote. One of the judges who voted in favor of rehearing the case before the full court, Judge James A. Wynn Jr., wrote that “At a minimum, [the case deserves] the careful deliberation of this entire Court.”