ST. PAUL — As Minnesota lawmakers push forward in a months-long battle to compromise on insulin affordability legislation, lobbyists for pharmaceutical companies are now alleging two proposed bills could violate the U.S. Constitution.
In Thursday, Feb. 13, letters to lawmakers, the Pharmaceutical Research & Manufacturers of America wrote that portions of House Democrats' House File 3144 and Senate Republicans' Senate File 3019, which would both establish an insulin affordability program, "raise constitutional concerns and violate the Fifth Amendment's Takings Clause."
A portion of HF 3144 requires manufacturers to provide emergency supplies of insulin to Diabetics in need "at no charge," without reimbursement. PhRMA in their Thursday letter cited U.S. Supreme Court precedent ruling that "the government may not take property as a condition of allowing businesses to sell their products," and said manufacturers should be reimbursed for any product at market value, or else the state would be illegally taking their insulin without just compensation.
Greg Kueterman, a spokesperson for Eli Lilly — one of three manufacturers of insulin — said via email Thursday that the list price of one vial of Eli Lilly's most commonly used insulin is $275. Eli Lilly also opposes both HF 3144 and SF 3019.
Bill author Rep. Michael Howard, D-Richfield, said after a Thursday hearing on the bill that this week was the first he had heard any constitutional issue raised on the bill, and legislators are still looking into it. Still, in the face of a potential lawsuit, he encouraged his colleagues not to back down because lives are at stake and "it's not new for drug companies to threaten litigation."
He said Minnesotans — particularly those who rely on insulin to live — want to see the Legislature pass a bill that "works best for patients, not drug manufacturers."
"That's really who we should listen to and feel the wind at our backs to move as quickly as we can to put up a program so that no one else loses their life," he said.
Democratic Gov. Tim Walz told reporters Thursday that drug manufacturers have a right to bring a lawsuit against the state if they don't agree with the bill, but suggested that wouldn't bode well for them in the court of public opinion.
“If they’re going take in and continue what polls better than apple pie, that Minnesotans want their neighbors to get their insulin, they can do that but I certainly wouldn’t give them that advice," he said.
Sen. Scott Jensen, R-Chaska, who is led the Senate version at Thursday's hearing, also brushed off litigation concerns, calling it "noise." As a family doctor, Jensen said he treats hundreds of patients with diabetes, and sees firsthand how insulin prices impact their lives.
Years ago, Jensen said questions of affordability weren't at the forefront of his conversations with patients. But insulin prices have tripled in the last decade. Now, asked if his patients tell him about struggles to afford the life-saving drug, Jensen said, "always."
"The price point has become so intense," he said. "I still have problems with some of my colleagues perhaps being too willing to not really consider how the patients are going to pay for it."
Nick McGee, the director of public affairs for PhRMA, told Forum News Service that there's "no argument" that patients are having difficulty paying for their insulin. But he argued that the Legislature's bills don't get to the root cause of the issue: that it's insurance companies that have increased deductibles and are not passing on savings from pharmaceutical rebates to the patients.
Asked why the sticker prices of prescriptions are so high in the first place, McGee deferred to manufacturers for pricing information.
Senate Health and Human Services chair Michelle Benson, R-Ham Lake, concluded Thursday's hearing saying, "The federal rebate game and the way we do pricing makes absolutely no sense."
"The idea that a rebate has to be passed down at point of sale?" she asked. "How about just have a normal price?"
Both the House and Senate versions of the bill passed out of their respective committees Thursday. After months of back-and-forth across the aisle, Senate Majority Leader Paul Gazelka told reporters Thursday that he can "see light at the end of the tunnel."