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Drug price gouging? It’s personal

Daily Record
Fraser Smith
November 9, 2017

As a professional observer of public affairs, I should avoid commenting on issues that affect me personally. Full disclosure in such situations seems prudent.

Herewith some thoughts on the General Assembly’s anti-drug price gouging bill.

I am, of course, affected by every law passed by the state of Maryland, but one of this year’s legislative efforts affects me personally — and painfully.

As a gout sufferer, I am a sitting duck for the drug price gougers. During my most recent attack, I hurried to replenish my supply of Colchicine. Of course I had read about manufacturers who brag about raising their prices unconscionably:

“Because I can,” one of them explained.

This was almost literally true. Hardly any law or regulation — other than common decency or concern for the community — got in his way.

I understood exactly what that meant when I filled my prescription. Something I had paid $50 or maybe even less for was now available for $250 or more. I was able to pay without financial agony. But I understood the impact of gouging up front and personal.

So, obviously, I have a stake in the outcome of a court case aiming to find the General Assembly’s bill – now a law — unconstitutional.

At the same time I find myself inadvertently involved in the Democratic Party’s continuing effort to make Republican Gov. Larry Hogan look bad in the eyes of the voter.

So far, the governor has done a credible job of seeming moderate — with thanks to  President Trump, whose governing makes Hogan the soul of prudence.

An exception would be the aforementioned drug gouging measure.

Hogan declined to sign it for various reasons, including the power it gave Democratic Attorney General Brian E. Frosh to go after generic drug companies that raise prices “unconscionably” or “excessively.”

Those words should be defined, he said, adding that he is “very supportive of ensuring that essential health needs of Marylanders are met.”

This, you will have noticed, is an attempt to have it both ways. He shares the goal, he said, but the bill may be incomplete and perhaps unconstitutional. So far, the courts have found no problem. And, if you really wanted to help the consumer, wouldn’t you say “Gouging is outrageous!”, sign the bill and the let the legal chips fall where they may?

Opponents of the bill, following the governor’s objections, said manufacturers would be in an unfair situation. They wouldn’t know what they could do without criminal action.

Jeff Francer, an attorney representing the industry, said his clients deserve clarity.

He told one publication: “The highway doesn’t have a sign that says ‘please drive at a reasonable speed.’ The sign gives you a number and you know whether you’re speeding or not.”

Fair enough, but I’m guessing manufacturers could find a way to keep their prices under the “unconscionable” or “excessive” bar.  They could guess, couldn’t they, that increases of 400 or 500  percent would draw a red flag.

The governor said the bill might do more harm than good. Some companies might be so flummoxed they would simply pull their products off the market here. Sounded like a scare tactic to me.

The bill’s sponsors say an effort was made to target the essential drugs — drugs people can’t live without. Examples have included injectors for the heroin antidote Naloxone. Albuterol — a sulfate that is used to treat asthma — and EpiPens that address severe allergic reactions.

I should make one or two things clear. I am not seeking any special relief. If Frosh finds I’ve been unconscionably fleeced, I will obviously savor my small victory as a win for other Marylanders similarly gouged.

I might also suggest, as others have, that the drug interests are grateful to Hogan for his help in Maryland. But their real concern is national, not tiny, brassy annoying Maryland.

Mighty Maryland shows the way for California and other states willing to stand up against gouging.

Fraser Smith is a writer in Baltimore. His column appears Fridays in The Daily Record. He can be reached at smithfraser911@gmail.com.

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