The full Federal Circuit Court of Appeals has just rejected a challenge to an earlier ruling that the District of Columbia’s Prescription Drug Pricing Act is preempted by federal patent law. D.C. drug price-control law bans “excessive prices,” a vague term for which there is no specific statutory definition. It does, however, include a provision declaring that a drug price is presumptively excessive when it is “30% higher than the comparable price” charged in Australia, Germany, the United Kingdom, or Canada.
It also authorized lawsuits against pharmaceutical manufacturers by any organization claiming to act “in the public interest;” “any person” claiming to be affected by excessive drug prices; any organization that represents such persons;” and “the District of Columbia” itself. In such lawsuits, lawyers for the prevailing parties would receive “attorneys’ fees,” while the plaintiffs would receive “treble damages,” and the D.C. Government would receive monetary “fines.”
The judges denied D.C.’s petition for rehearing en banc, with concurring and dissenting justices arguing about the intricacies of the Supreme Court’s preemption jurisprudence. Additional coverage of the case, called Biotechnology Industry Organization v. Pharmaceutical Research Manufacturers of America, can be found here and here.