Now Merck Is Suing To Protect Its Greed
This conservative-controlled Congress (and White House) is opposed to Medicare for All. That doesn’t mean Bernie is sitting still and waiting for the Democrats to take back the House and get rid of Republican-lite Democrats like Joe Manchin and Kyrsten Sinema in the Senate (and replace Josh Hawley with Lucas Kunce). What Bernie is concentrating on now is addressing growing health workforce shortages and financial woes of community health centers. “The goal right now is to take bold action to increase our health care workforce, to make sure that everybody in this country has access to a doctor or a dentist or nursing,” he told Politico. “If we agree that there is a crisis, if we agree that inaction will only make the crisis worse, do we have the political will to do what we have to do for the American people?”
Daniel Payne and Burgess Everett wrote that “even as there is broad bipartisan agreement that something should be done to alleviate the workforce shortages and help the community health centers… Senate Republicans, as well as those in control of the House, are unlikely to endorse his first legislative proposal’s huge increases.” Conservatives oppose spending any money to alleviate the problem. Instead, what the Republicans support is the new Merck lawsuit against the government for allowing Medicare to negotiate drug prices, the same way the Veterans Administration already does.
The purpose, of course, is to bring Merck prices down to what people pay for lifesaving drugs in other countries. Warren Gunnells is the Majority Staff Director for Bernie’s Health, Education, Labor and Pensions Committee. He tweeted this on Tuesday right after Merck filed their lawsuit:
Many of Merck’s— and other pharaceutical companies’ drugs— are developed with taxpayer dollars from the National Institutes of Health (NIH)— with grants and contracts to researchers and institutions— and the Biomedical Advanced Research and Development Authority (BARDA), drugs that are licensed and sold by these private corporations. In addition to direct funding, the government also supports R&D through tax credits and incentives, which indirectly reduces the cost of development of drugs and technologies for these corporations.
On Tuesday, Rebecca Robbins reported that Merck’s lawsuit “is the drug industry’s most significant move so far to fight back against a substantial change to health policy, which will go into effect in 2026,” the effect of which is meant to lower some drug prices… and only after they have been on the market without competition for years.” Merck and other drug companies are threatening to stop doing research and development if they can’t continue ripping off consumers.
In the complaint filed on Tuesday, Merck’s lawyers at the law firm Jones Day claim that the Medicare-negotiation program is unconstitutional. They say the program would coerce Merck to provide its products at government-set prices, violating a clause of the Fifth Amendment that prohibits the government from taking private property for public use without just compensation. They also claim that the program would violate Merck’s free-speech rights by coercing the company to sign an agreement it did not agree with upon the conclusion of the negotiation.
But several experts who study the industry said the constitutionality arguments were weak and would face an uphill battle in court.
“What Merck argues is ‘coercion’ is actually the establishment of a freer, more rational marketplace” that will address a crucial root cause of high drug prices, said Dr. Ameet Sarpatwari, an expert in pharmaceutical policy at Harvard Medical School.
Experts noted that the negotiation process gave drugmakers leeway to reject Medicare’s final offer and walk away without a deal if they were not happy, subject to a tax. But Merck’s lawsuit said that for one of the company’s drugs, the tax for refusing an offer could amount to tens of millions of dollars on the first day and rise to hundreds of millions daily after a few months.
In September, the government plans to announce the first 10 drugs that will be subject to negotiation in 2026. A widely used Merck drug for diabetes, Januvia, is likely to be on that list.
The program could also affect Merck’s long-term plans for its golden goose, the blockbuster cancer drug Keytruda. It could be among the first products targeted when negotiations begin in 2028 on drugs administered in a health care setting.
The current version of Keytruda, administered as an infusion, will face its first competition that same year, so its sales are expected to erode regardless of whether the program targets it. But Merck had been expecting to bring in significant revenue from a new formulation of Keytruda it is developing that can be more easily given under the skin. That could be subject to negotiation, too, under the government’s plans for the program.
You might say the U.S. has a “unique” healthcare system where drug prices are primarily determined through negotiations between pharmaceutical companies and private payers— health insurance companies— unlike in other developed countries where centralized healthcare systems regulate drug prices to prevent consumers from being ripped off.
Congress doesn’t act to protect consumers because the bribes from the pharmaceutical companies are immense— millions of dollars year after year with no end. The House members who got the biggest direct bribes (over $150,000) last cycle (so in just 2 years):
Cathy McMorris Rodgers (R-WA)- $419,195
Scott Peters (New Dem-CA)- $399,540
Brett Guthrie (R-KY)- $343,700
Larry Bucshon (R-IN)- $223,400
John Curtis (R-UT)- $213,400
Frank Palone (D-NJ)- $199,460
Anna Eshoo (D-CA)- $198,375
Kevin McCarthy (R-CA)- $194,328
Tony Cardenas (New Dem-CA)- $178,400
Vern Buchanan (R-FL)- $177,100
Richard Hudson (R-NC)- $176,702
Drew Ferguson (R-GA)- $170,400
Brad Wenstrup (R-OH)- $168,400
Robin Kelly (D-IL)- $160,800
Darin LaHood (R-IL)- $155,600
Brad Schneider (New Dem-IL)- $152,402
Josh Gottheimer (New Dem-NJ)- $151,938
I asked a friend of mine who is an expert in congressional ethics if these members should be tried and jailed. He said they should and that all 17 of them “belong in prison, not in Congress… We pay higher prices for drugs because of these men and women, especially the real criminal types like Scott Peters, Kevin McCarthy and Tony Cardenas… I’d add in Kurt Schrader, who also took over $150,000 in bribes last cycle but his constituents were smart enough to defeat his reelection attempt. He's now a pharma lobbyist."
