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Justice Ruth Bader Ginsburg‘s service to America on the Supreme Court and her commitment and work towards making the country better throughout her life were incredibly admirable. She leaves a remarkable legacy.

The country now enters a dialogue on the effort to fill Justice Ginsburg’s seat on the Supreme Court. The implications for court decisions that could impact the pharmaceutical industry, prescription drug costs and personal importation are significant.

Court Decisions Impacting Prescription Drug Costs:

Since the 1911 U.S. v. Johnson case, the Supreme Court has levied a multitude of decisions impacting the pharmaceutical industry and the cost of prescription drugs. In that 1911 case, the Supreme Court ruled that the 1906 Food and Drugs Act does not prohibit false therapeutic claims but only false and misleading statements about the ingredients or identity of a drug.

More recently in its May, 2017 decision Impression Products, Inc. v Lexmark International Inc., the Supreme Court ruled that patent law cannot be used to prevent the resale of products back into the United States. The case specifically concerned printer toner cartridges, but it has implications concerning prescription drug pricing. The Court took on the question of whether U.S. patent law differentiates between patent holder rights for products sold by the manufacturer to purchasers in the U.S. and to purchasers outside the U.S. The Court determined that patent holder rights are not differentiated by the location of the purchaser. Millions of Americans continue turning to importation of prescription drugs as an antidote to the high drug prices in the U.S.

Future & Potential Cases with Implications for Prescription Drug Costs:

Just as there have been numerous cases that have changed the landscape of the pharmaceutical industry between 1911 and 2020, there will be many more court decisions to come with implications impacting the industry and the costs that US patients shoulder.

There are currently two cases pending before the Supreme Court that could directly impact Americans’ ability afford prescription prescription drugs:

  • California v. Texas: A case in which the Court will decide whether the Affordable Care Act’s individual mandate is unconstitutional, and if so, whether it is severable from the rest of the Act.

  • Rutledge v. Pharmaceutical Care Management Association: A case in which the Court will decide whether an Arkansas law regulating pharmacy benefit managers’ drug-reimbursement rates is preempted by the Employee Retirement Income Security Act of 1974 (ERISA).

Two other significant areas for potential cases impacting American patients’ ability to afford prescription drugs include:

  • Potential challenges to President Trump’s Executive Orders aimed at lowering prescription drug prices.

    • In a 2020 legal setback for President Donald Trump on a high-profile consumer issue, a federal appeals court has ruled that his administration lacks the legal authority to force drug companies to disclose prices in their TV ads.

  • Potential challenges to the 2020 election outcomes at federal, state and local levels. Democrats and Republicans at all levels of government have numerous pieces of legislation and policy proposals aimed at the pharmaceutical industry. Any electoral challenges would have impacts on what legislation moves forward in 2021.

What’s Next:

President Trump has announced his intent to nominate a Supreme Court pick to replace Justice Ginsburg. Earlier in September President Trump released a list of 20 potential nominees.

Senate Majority Leader Mitch McConnell has announced his intent to act quickly to advance deliberation and a vote on the expected Supreme Court nomination from President Trump. McConnell could bring the nomination to the Senate floor and approve it with a simple majority vote, and that could happen in a time-frame before the November 3, elections.

The Campaign for Personal Prescription Importation continues to keep a close eye on developments that could impact American’s ability to safely import prescription drugs for personal use, and we will continue to keep you updated.

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