LA Times Opinion, On The Merck v. HHS Suit Is Spot-On: There Is No Constitutional Right To Extract From The Government, A "Specifically High Price", For Essential Medicines.

"Amazin'" -- what's old. . . is new, again -- apparently (so much so, that I simply added a reference or two in the header-text, including the case citation -- and down-dated the time-stamp in the lower left corner, by a decade from a legacy graphic, at right). Grin. And. . . yikes.

As we mentioned last week (and regularly -- over the last 15 years, on the general topic -- this cannot persist forever!), the Chamber of Commerce has also filed a federal suit, joining Merck -- and as expected, the editors of newspapers, large and small, have. . . thoughts. Excellent -- if acerbic, thoughts. They are right, and the LA Times' is among the best. [See the pull quote below, but do go read it all.]

It quotes a U. of Michigan Law professor for the unsurprising notion that there is no "involuntary taking" by the government, from Merck, when/if it decides not to pay an abnormally high price for essential medicines. And of course, Merck doesn't have to sell to the government (it may avoid any tax by. . . not selling to the feds).

Of course, what Merck well knows, is then HHS and CMS will (as already plainly allowed by existing US rules) simply strike a deal to buy the very same drugs in Canada or Mexico, where they list for less than a third of what Merck charges in the USA.

That is primarily why Merck "jumped the shark" here -- and falsely labeled this as a "taking without compensation". It is no such thing. Merck will ultimately lose in court (even if pharma's lobbyists on Capitol Hill ultimately win out, by blunting it -- with other new legislative moves).

. . .[The suits are] windows into the mind of Big Pharma, revealing the industry’s grotesque level of entitlement and its cynical exploitation of Americans’ desire for better healthcare in order to claim profits well beyond the level that any thinking person would consider moral.

The lawsuits are so similar they read like ChatGPT versions of each other. Both are compendiums of artful dodging and febrile rhetoric, which is what corporate lawyers produce for a living. (Merck calls the program a “dystopian parody of ‘negotiation,’” which is pretty fancy wordsmithing). . . .

The fundamental flaw in this argument, says Nicholas Bagley, an expert on administrative and healthcare law at the University of Michigan, is that “Merck doesn’t have a constitutional right to sell its drugs to the government at the price that Merck would prefer.” The government isn’t “taking” anything that Merck doesn’t choose to give it. . . .

Merck’s profit margin has averaged about 25% over the last two years. In fact, it collected more in profit over that time span ($27.5 billion) than it spent on research and development ($25.8 billion); in 2021 and 2022 the company also spent nearly $16 billion on stock buybacks and dividends. In other words, it has more than enough spare cash to “develop lifesaving and life-changing innovations. . . .”

Merck probably was the first drug company out of the gate with a lawsuit because it knows that two of its biggest-selling drugs are likely to be subjected to the negotiating program in its first rounds. They’re Keytruda, a cancer immunotherapy drug that is its top seller, and Januvia, a diabetes treatment that ranks fourth. Together, those two drugs have accounted for about 45% of Merck’s sales in the last two years, producing profits the company is desperate to protect. . . .

Indeed. That may be a pretty nice place to "put a pin in this blog" for about ten days -- as we travel for joyous reasons, and vacations. Be excellent to each other.

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