WASHINGTON - Senators Amy Klobuchar and Peter Welch as well as Senators John Hickenlooper, Elizabeth Warren, Chris Van Hollen, Richard Blumenthal, Tammy Baldwin, Jacky Rosen, Sherrod Brown, Dick Durbin, John Fetterman, Debbie Stabenow, Catherine Cortez Masto, and Jeanne Shaheen filed an amicus brief in Merck & Co. v. Becerra in the District Court for the District of Columbia urging the federal court to uphold the constitutionality of Congress allowing Medicare to negotiate lower drug prices for consumers. 

“For too long, Americans have paid the highest prices in the world for prescription drugs. Thanks to legislation we passed to end Big Pharma’s sweetheart deal, Medicare is starting to negotiate lower drug prices for consumers,” said Klobuchar. “It’s no surprise Big Pharma is now trying to stop this in the courts and keep prescription drug prices sky high. We’re fighting back against these absurd lawsuits and we’re not giving up.”

“Merck’s lawsuit is a shameless attempt to use the judiciary to overturn the clearly expressed intent of the legislature and the American people. By allowing Medicare to negotiate prices, the Inflation Reduction Act puts the physical and financial health of patients over corporate profits,” said Welch. “Medicare’s new capacity to negotiate prescription drug prices is bringing Medicare in line with other government agencies like the VA, and it’s just the beginning of our fight. I’m proud to partner with my friend and colleague Senator Klobuchar today, and I will continue to stand up for affordable health care for all Americans.”

An excerpt from the brief is below. The amicus brief is available HERE.

Merck now attempts to accomplish through judicial action what it could not through the legislative process. Merck’s position in this litigation boils down to the argument that the United States Constitution somehow prohibits the federal government from negotiating the prices of the products it purchases. Merck seeks to prevent reform of a purchasing process that Congress itself made, but now, according to Merck, cannot unmake, or even amend for the benefit of the American public and the American taxpayer. As a matter of constitutional law, that position is baseless. Congress improves laws all the time, and it has the right and indeed the duty to do so. The Program takes nothing from Merck: not its drugs and not its patents. And the Program likewise does not coerce Merck to do or say anything: like every other market participant, it may sell its products at a price the buyer thinks is fair, or it may not.

Klobuchar has long led efforts to lower drug prices. 

Provisions from Klobuchar and Welch’s bill to end the ban on Medicare negotiating lower prescription drug prices for Medicare’s 50 million seniors were incorporated into a larger piece of legislation signed into law last August. 

This past April, Klobuchar, Welch, and 28 of their colleagues introduced the Strengthening Medicare and Reducing Taxpayer (SMART) Prices Act which would enhance the ability of the Department of Health and Human Services (HHS) to negotiate lower drug prices for Medicare Part D beneficiaries. 

In February, two of Klobuchar and Senator Chuck Grassley’s (R-IA) bipartisan bills to promote competition and reduce drug prices - the Preserving Access to Affordable Generics and Biosimilars Act and the Stop STALLING Act - passed the Senate Judiciary Committee by voice vote. 

The Preserving Access to Affordable Generics and Biosimilars Act would limit anticompetitive “pay-for-delay” deals that prevent or delay the introduction of affordable follow-on versions of branded pharmaceuticals.  

The Stop Significant and Time-wasting Abuse Limiting Legitimate Innovation of New Generics  (Stop STALLING) Act would deter pharmaceutical companies from filing sham petitions with the Food and Drug Administration (FDA) in order to interfere with the approval of generic and biosimilar medicines that compete with their own brand products, a tactic that delays patient access to affordable medications.

In June 2022, Klobuchar and Representative Katie Porter (D-CA) urged the Department of Justice (DOJ) and Federal Trade Commission (FTC) to examine the parallel price increases for two commonly-used blood thinner medications: Janssen Pharmaceuticals’ Xarelto and Bristol-Myers Squibb (BMS)-Pfizer’s Eliquis. The lawmakers expressed concern that lockstep pricing practices and the general lack of competitive behavior exhibited by these drug sellers may constitute potential unlawful conduct.

In February 2022, Klobuchar and Senator Bernie Sanders (I-VT) introduced the Cutting Medicare Prescription Drug Prices in Half Act, which would allow Medicare to pay the same prices for prescription drugs as the Veterans’ Administration (VA). The prices the VA pays for prescription drugs are roughly half the amount of prices paid by Medicare Part D for the same products. 

In February 2021, Klobuchar and Grassley introduced bipartisan legislation to allow imports of more affordable prescription drugs from Canada. The Safe and Affordable Drugs from Canada Act would allow Americans to safely import prescription drugs from Canada, lowering prices for consumers and promoting competition in the pharmaceutical market.