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Maryland Turns to Supreme Court to Salvage Drug Price-Gouging Law

Oct. 19, 2018, 8:11 PM

Maryland asked the U.S. Supreme Court Oct. 19 to uphold the state’s law aimed at preventing price gouging of generic drugs.

The nation’s highest court is Maryland’s last chance to preserve the law, which made Maryland the first state in the nation to empower its attorney general to fight alleged pharmaceutical price gouging. Consideration by the Supreme Court could affect similar legislative efforts in other states.

“We are fighting to ensure Marylanders continue to have access to the essential generic medicines they need,” Maryland Attorney General Brian Frosh said in a statement after the petition was filed Oct. 19.

Maryland’s law took effect after the state legislature passed it with veto-proof majorities on May 26, 2017, and Gov. Larry Hogan (R) allowed it to pass into law 30 days later without his signature.

The law was struck down in a legal challenge by the generic drug industry’s trade group, the Association for Accessible Medicines. Members of AAM include Mylan, Teva Pharmaceuticals, Impax Laboratories, and Sandoz, which is part of Novartis.

The U.S. Court of Appeals for the Fourth Circuit on April 13 said the law violates the U.S. Constitution’s commerce clause. That clause gives Congress, not individual states, the right to control certain aspects of interstate commerce. The Fourth Circuit refused in July to rehear the case.

Vincent DeMarco, president of the Maryland Citizens’ Health Initiative, a group that advocates for affordable medicines in the state, said Oct. 19 that the group applauded the move and is optimistic the Supreme Court will consider the case.

The case is Frosh v. Ass’n for Accessible Medicines, U.S., No. unavailable, petition filed 10/19/18

To contact the reporter on this story: Leslie A. Pappas in Philadelphia at lpappas@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com