Given the high prices many families can’t afford and a Congress unwilling or unable to take action, a number of states have been working to cap the cost of life-saving epinephrine auto-injectors, including New Jersey, Delaware, Missouri, Rhode Island, Vermont, and Colorado.
One pharma company that markets an epinephrine auto-injector has taken notice and is fighting back.
Teva Pharmaceutical USA has filed suit in US District Court for the District of Colorado, asserting that the state’s recently enacted House Bill 23-1002, which takes effect on January 1, 2024, is unconstitutional.
Under HB 23-1002, Teva claims:
… any time an eligible uninsured Coloradan acquires an auto-injector from a Colorado pharmacy, Teva must send the pharmacy a free replacement. Teva’s only alternative is to reimburse the pharmacy the full price it paid for the auto-injector—an amount that will almost always be more than what Teva could make selling the product to a wholesaler.
HB 23-1002’s reimburse-or-resupply requirement plainly effects an unconstitutional “per se physical taking” of Teva’s personal property in violation of the Fifth Amendment.
In other words, because the legislation requires pharma companies to provide replacement auto-injectors to Colorado pharmacies to cover the uninsured, Teva asserts the legislation runs afoul of the following highlighted clause of the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.— Fifth Amendment to the Constitution of the United States
This is in spite of the fact that Teva would stand to make a significant profit on auto-injectors for the insured.
It should be noted that Teva was also the company alleged to have agreed to delay the introduction of their generic version of EpiPen in exchange for Mylan delaying the introduction of a generic version of one of Teva’s brand-name drugs.
We will continue to follow the suit and report on developments.
- Teva, Backed by Kirkland & Ellis, Challenges Constitutionality of Colorado’s EpiPen ‘Affordability Program’ — Law.com
- TEVA PHARMACEUTICALS USA,INC. v. MICHAEL CONWAY — Kirkland & Ellis
- HB23-1002 — Colorado General Assembly