Hello fellow 340B colleagues!
Thank you for joining the community of 340B concerned parties. I would like to kick off this thread with a recent article in 340B Report discussing the success of other states in addressing the challenges we face with the various manufacture restrictions on access to 340B pricing at our contract pharmacies.
My question for the group: Do we think this is something Wisconsin legislature would be willing to engage in?
Status of PhRMA's Challenge to Arkansas Law
A federal district court in Little Rock, Arkansas ruled in December, 2022 against PhRMA's challenge to the law's constitutionality. The judge overseeing the case determined that Act 1103 is not preempted by the federal 340B statute nor by the U.S. Food and Drug Administration's Risk Evaluation and Mitigation Strategies requirements. Bill von Oehsen, a principal at Powers, Pyles, Sutter & Verville, whose firm represents an Arkansas health center association and community hospital in the case, told me that PhRMA's other main argument-that the state law violates the federal constitution's Commerce Clause–was undermined by a recent U.S. Supreme Court decision that found a California state law did not violate the U.S. Constitution's Commerce Clause.
In fact, the 8th Circuit is not even considering the commerce clause argument in its evaluation of the case. After listening to the Sept. 20 oral arguments in PhRMA vs. McClain, it remains unclear in what direction the three-judge appellate panel is leaning. Nevertheless, on the same day that the arguments occurred, Teva announced suspension of its contract pharmacy restrictions in Arkansas. von Oehsen believes there is significant momentum at the state level to prohibit drugmakers from placing restrictions and conditions on 340B pricing in the contract pharmacy setting. He anticipates many other state legislatures will push to enact similar laws in their next legislative sessions.
As Congress moves slowly to address the contract pharmacy impasse and the various manufacturer suits against the federal government drag on, you can expect to see many states following the lead of Arkansas and Louisiana. Be prepared for a busy January and February when many state legislators go back to work in their state capitols.
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Jacob Olson PharmD
340B Program Manager
Froedtert Hospital
Menomonee Falls WI
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