Merck sues US over law giving Medicare power to negotiate with drug makers
The pharmaceutical company Merck on Tuesday sued the government over a federal law that empowers Medicare for the first time to negotiate prices directly with drug makers.
Merck’s lawsuit, filed in federal court in Washington, is the drug industry’s most significant move so far to fight back against a substantial change to health policy, which will go into effect starting in 2026. Democrats pushed through the Medicare negotiation program last summer as a provision of the Inflation Reduction Act, framing it as a way of lowering drug prices.
Only some drugs will be subject to negotiation with Medicare and only after they have been on the market without competition for years. But Merck, which generated $14.5 billion in profit last year, claimed in a statement Tuesday that the law would stifle its ability and that of its peers to make risky investments in new cures.
Other drug companies have suggested that they will choose to cut certain drug development programs because of the projected dent to their revenue. Several have already said they were reassessing their research plans.
Merck said it was seeking a court order or another legal remedy that could exempt Merck from having to participate in the negotiation program.
Xavier Becerra, the US secretary of health and human services, said in a statement that the Biden administration would “vigorously defend” the law. “The law is on our side,” he said.
In the complaint filed Tuesday, the company’s lawyers at the law firm Jones Day claim that the Medicare negotiation program is unconstitutional. They claim that the program would coerce Merck to provide its products at government-set prices, violating a clause of the Fifth Amendment that prohibits the government from taking private property for public use without just compensation. They also claim that the program would violate Merck’s freespeech rights by coercing the company to sign an agreement it did not agree with upon the conclusion of the negotiation.
But several experts who study the industry said the constitutionality arguments were weak and would face an uphill battle in court. “What Merck argues is ‘coercion’ is actually the establishment of a freer, more rational marketplace” that will address a crucial root cause of high drug prices, said Dr. Ameet Sarpatwari, an expert in pharmaceutical policy at Harvard Medical School.