Merck, BMS, and three industry groups filing lawsuits against the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) may face an uphill battle in stopping upcoming Medicare drug pricing negotiations. The suits filed by the first two are based on the notion that the negotiations violate the First Amendment, freedom of speech, and the Fifth Amendment, the right against the government seizing property without just compensation.
According to Katie Adams, “However, healthcare law expert Robin Feldman told MedCity News that patents are not considered private property for the purposes of the Fifth Amendment’s Compensation Clause according to historical and textual precedents. For this reason, she doesn’t believe that the plaintiffs have a justifiable basis for their claims.”
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(Source: Med City News, June 26th, 2023)