November 1, 2018
By: Lev Facher

WASHINGTON — Frustrated by inaction from the federal government, lawmakers at the state level have taken the issue of drug pricing into their own hands, in many cases turning pharmaceutical industry influence into a signature issue in their local campaigns.

In Wisconsin, the Democratic nominee for governor is promising to fine drug makers who hike their prices without justification. In Michigan, the Democratic Party is pushing to axe a “shield law” that grants pharmaceutical companies immunity from lawsuits over dangerous drugs and their impacts. And in Maryland, more than 130 legislative candidates and sitting lawmakers have promised they’ll create a committee that sets maximum purchase prices for drugs — applicable to state health programs and private insurers alike.

It’s a new wave of state-level momentum to address high drug costs and pharmaceutical industry influence — and it mirrors the hue and cry from Democrats in Washington, who have pledged to make drug pricing a signature issue if they regain power.

Unlike Democrats in Washington, who will have to contend with a slow-moving and often hostile Senate and a fickle Trump administration, Democrats in state legislatures may actually be able to make 2019 the year they tackle high drug costs.

“Drugs don’t work if people can’t afford their medicines,” said Vincent DeMarco, the president of the Maryland Health Care For All Coalition, a progressive health advocacy group. “The polling shows the public really wants this to happen, and I think legislators know that.”

DeMarco’s organization is pushing state legislative candidates to pledge support for a bill that would establish a drug cost review commission, which would prohibit local health programs and private health providers from exceeding a specific price threshold for certain drugs.

Already, 135 candidates, the majority of whom are sitting legislators, have signed on — which DeMarco says could translate to a hefty majority in both the state Assembly and state Senate. That coalition, which includes three Republicans, could back an oppositional drug lobby into a corner.

“The opposition is hard to overcome,” DeMarco said. “They have a lot of money, a lot of clout, a lot of lobbyists from PhRMA, from all the individual drug corporations. “[But] we’re going to pass something on a prescription drug pricing board next year.”

A digital ad DeMarco’s group is now running features a man with Parkinson’s putting it in equally blunt terms: “Elections are coming, and we want to show we’re not afraid of big drug companies.”

The model the group is pushing was created in large part by Jane Horvath, a former policy fellow and current consultant at the National Academy for State Health Policy. (She also spent a decade at the drug company Merck, where she worked as the executive director for health policy and reimbursement.)

Proposals to create rate-setting boards in New Jersey and Minnesota are based on the same model.

“Access is the essence of the drug affordability board,” Horvath said. “It’s not really looking at value — a drug could be very clinically valuable, but it won’t work if people can’t afford it.”

In Maryland, drug pricing advocates are optimistic about their chances — in part because their state legislature is heavily Democratic and their Republican governor has expressed openness to the idea.

The state is already ahead of the curve when it comes to trying to rein in high prices. The legislature there passed a substantial drug-pricing reform in 2017, which Gov. Larry Hogan, a Republican, did not veto. The law would have enabled the state to sue generic drug makers for price increases the state viewed as excessive, but it was struck down by a federal court this year. The state attorney general, Brian Frosh, petitioned the Supreme Court to uphold the law just last week.

Efforts to enact drug-pricing review boards are also underway in states including Ohio, New Mexico, and Rhode Island, giving political candidates in each place a specific bill they can point to on the campaign trail. Nearly every state legislature, according to a recent analysis, considered some form of legislation in 2018 to address high drug prices.

As they take on that work, however, states are encountering characteristically fierce resistance from the pharmaceutical industry. Already, drug industry lobbyists have defeated ballot initiatives in three states and the District of Columbia that were aimed at lowering prices — two of which failed before voters, two of which were struck down by legal challenges. The lobbying group PhRMA has also publicly opposed bills in numerous states that would install a pricing review board.

“Proposals that would implement price controls do not put patients first or make the health care system work better for them,” Nick McGee, a PhRMA spokesman, told STAT in a statement. “Dangerous price controls are merely a retread of failed policies and political talking points that won’t address the affordability challenges patients are facing and could potentially limit their access to the medicines they need.”

In Wisconsin, Tony Evers, the Democratic candidate for governor, has pledged to create a state board that reviews drug company price hikes and fine manufacturers whose increases are deemed excessive. The sitting Republican governor, Scott Walker, has opposed the plan.

And even in states without specific legislation to address drug pricing teed up or an influential coalition ready to pressure pharmaceutical companies, industry influence has proven a potent campaign argument.

In Michigan, some Democrats are campaigning on a promise to overturn a rare “shield law” that makes it difficult for local governments to sue pharmaceutical manufacturers if their products cause public health problems.

It is a prime opportunity for the party: The author of the original statute, Attorney General Bill Schuette, is also the Republican candidate for governor. And Rep. Mike Bishop, a Republican facing a strong challenge in his central Michigan district, blocked a bill that would have repealed the shield law when he was majority leader in the state Senate.

The issue of pharmaceutical industry influence is so persuasive in Michigan that local Democrats this week inflated a 17-foot inflatable prescription pill bottle outside a campaign stop at which Vice President Mike Pence appeared.

“The high cost of prescription drugs is either the top issue or a very close second for voters in all the polling we’ve done,” said Brandon Dillon, the state’s Democratic Party chair.

Correction: An earlier version of this story misstated the exact legislative path of a 2017 Maryland drug pricing law.

Last modified: November 1, 2018