Pharmacy Trade Group Asks SCOTUS to Not Review Arkansas Drug Law

The Pharmaceutical Care Management Association is fighting the federal government’s attempt to get U.S. Supreme Court review of an Arkansas drug-pricing law, saying the circuit split identified by the government doesn’t exist.

The PCMA, a trade group representing pharmacy benefit managers (PBMs) like Express Scripts and CVS Health, urged the Supreme Court not to hear Arkansas’ appeal of a decision striking down the state’s law regulating PBMs.

The U.S. Court of Appeals for the Eighth Circuit correctly invalidated the law as preempted by the federal Employee Retirement Income Security Act, the PCMA said in a Dec. 17 brief.

The PCMA is responding to a Dec. 4 brief in which U.S. Solicitor General Noel J. Francisco urged the Supreme Court to take the case. Francisco disagreed with the Eighth Circuit’s decision to strike the Arkansas law on preemption grounds, and he argued that the decision conflicted with rulings from the First and D.C. circuits.

The PCMA disputes the existence of a circuit split, saying the government mischaracterized the nature of those courts’ decisions. The PCMA also renewed its preemption arguments by pointing out that the Arkansas law imposes “detailed requirements” that apply to both PBMs and ERISA-covered health plans.

At least 38 states have passed laws regulating how PBMs make money off prescription drugs. The states say the laws in question seek to tamp down on increasing prescription drug costs by making the relationships between pharmacies, pharmacy benefit managers, and consumers more transparent.

The PCMA has challenged several of these laws by arguing that they interfere with ERISA or Medicare statutes. The Eighth Circuit has twice agreed with the PCMA, striking down state laws in both Arkansas and Iowa, with a challenge to North Dakota‘s law pending.

Outside the Eighth Circuit, the PCMA is challenging an Oklahoma regulation in federal district court.

The Supreme Court hasn’t announced whether it will review the Arkansas law.

McDermott Will & Emery LLP represents the PCMA.

The case is Rutledge v. Pharm. Care Mgmt. Ass’n, U.S., No. 18-540, supplemental brief 12/17/19.