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Xavier Becerra

U.S. Health and Human Services Secretary Xavier Becerra testifies before the Senate Committee on Health, Education, Labor, and Pensions in Washington, D.C. on September 30, 2021. (Photo: Greg Nash/AFP via Getty Images)

Coalition Spells Out Biden Admin's Authority to 'Lower Drug Prices Right Now'

"I don't understand why he is allowing us, the American people, to suffer when he has the power to make the change," said one person who voted for President Joe Biden because of his promise to make medicines affordable.

Kenny Stancil

Although Republicans and a handful of Big Pharma-funded Democrats have undermined congressional efforts to rein in skyrocketing drug prices, a progressive coalition on Thursday reminded the Biden administration that it already has the power to make lifesaving medicines affordable and improve millions of lives today—and urged the White House to do just that.

"Seniors and families can't wait any longer for Congress to lower drug prices."

In a petition submitted to Health and Human Services (HHS) Secretary Xavier Becerra, advocates with the recently launched Make Meds Affordable campaign unveiled a roadmap showing how HHS could unilaterally and immediately lower drug prices, which would help reduce health inequities and eliminate ongoing epidemics, with no need to wait for Congress.

The roadmap outlines two executive authorities the federal government can invoke to end patent monopolies and lower drug prices, something that over 80% of U.S. voters support:

  • The "government patent use" authority (28 U.S.C. §1498) allows the government to use any patented invention in exchange for reasonable compensation... The federal government used the law repeatedly in the 1960s to buy low-cost generic versions of patented drugs. The government still routinely uses Section 1498 for other technologies, like night-vision goggles and electronic passports.
  • "March-in rights" and the royalty-free government use license allows the government to introduce additional producers when the patents on a medicine resulted from government funding... or to use such patents royalty-free on behalf of the United States.

The purpose of the Bayh-Dole Act, which gives the federal government its "march-in rights," is to ensure that taxpayer-funded products are "available to the public on reasonable terms."

Julia Santos, senior healthcare policy manager for Indivisible, said Thursday in a statement that "there's nothing reasonable about the sky-high profits that pharmaceutical companies enjoy at the expense of taxpayers."

As a starting point, the coalition encourages Becerra to use these existing tools "to make six medicines affordable and accessible to everyone who needs them."

Those half-dozen medicines are the "exorbitantly priced" drugs Xtandi, a prostate cancer treatment; Paxlovid, Pfizer's Covid-19 treatment; Descovy, an HIV prevention drug; Epclusa, a cure for hepatitis C; Symbicort, an inhaler; and insulin.

"Exercising executive authorities more widely could be transformative for public health," states the letter, which was signed by the Action Center on Race & The Economy; the Center for Popular Democracy Action; Indivisible; People's Action; PrEP4All; Public Citizen; Social Security Works; and T1International.

"We hope," the coalition adds in its letter to Becerra, "you will choose to deploy these authorities and show the American people that the Biden administration is willing to deliver on its commitments to make medicines affordable."

President Joe Biden was elected based in part on his pledge to reduce prescription drug costs. Profit-maximizing pharmaceutical corporations, meanwhile, continue to hike prices, exacerbating economic hardship and treatment rationing—with the latter projected to become a leading cause of death among seniors this decade.

Sharing a video featuring Sen. Elizabeth Warren (D-Mass.), who said during last month's launch of the Make Meds Affordable campaign that Biden and Becerra "have the legal authority to lower drug prices right now," PrEP4All called on the administration to fulfill its promise.

"That means using executive action to finally take on Pharma's deadly greed," said the group, which fights for equitable access to HIV and Covid-19 prevention and treatments.

Calling herself a "healthcare voter," Erin Jackson-Hill from Stand Up Alaska, an affiliate of the Center for Popular Democracy, said Thursday that she voted for Biden "because of his stance on healthcare and his assistance with the [Affordable Care Act]."

"I don't understand why he is allowing us, the American people, to suffer when he has the power to make the change," added Jackson-Hill. "With inflation and the increased price of oil, now seems like the perfect time to give the American people some relief."

"President Biden and Secretary Becerra have the power to bust big pharma monopolies through executive action. This roadmap lays out exactly how to do it."

Alex Lawson, executive director of Social Security Works, stressed that "seniors and families can't wait any longer for Congress to lower drug prices. President Biden and Secretary Becerra have the power to bust big pharma monopolies through executive action. This roadmap lays out exactly how to do it."

Peter Maybarduk, director of Public Citizen's Access to Medicines program, explained that "high drug prices are rooted in monopoly power granted by the government. Likewise, the government can take that power away to improve lives for millions who rely on critical medicines."

"Drug pricing legislation is essential," said Maybarduk. "Yet HHS does not need to wait for Congress to begin lowering drug prices, and the expected legislation on its own cannot end monopolistic price abuse. Challenging pharma today will give the government leverage, deliver affordable medicines, and increase the benefits of drug price negotiation in the near future."

HHS has indicated that it will decide soon whether to begin march-in proceedings to authorize generic competition with Xtandi.

Pressure has been mounting since at least November, when patient advocates Robert Sachs and Clare Love filed a separate march-in petition for the cancer drug. Last month, Warren, along with Sen. Angus King (I-Maine) and Rep. Lloyd Doggett (D-Texas), sent Becerra a letter urging him to hold a public hearing to allow petitioners and patent-holders to present their cases.

"Greedy pharmaceutical companies, whose sole goal is to pad their executives' and shareholders' wallets, are forcing everyday people to risk their lives by rationing the drugs they need to survive," Aija Nemer-Aanerud, People's Action Healthcare for All campaign director, said Thursday. "Congress gave Secretary Becerra the power to lower the cost of these drugs. He needs to fight these corporate bullies and use it."

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