State AGs Are Doing Work on Drug Pricing
By Erin Fuse Brown, JD, MPH
December 10, 2021
Erin Fuse Brown is the Catherine C. Henson Professor and Director of the Center for Law, Health & Society at Georgia State University College of Law. Her research focuses on the regulation of health care markets, consolidation and cost control.
Congressional Democrats are on the verge of passing the most significant prescription drug pricing reforms in years. But years of federal inaction on the issue — despite broad and bipartisan public support — have forced states to take the lead on prescription drug affordability. A new study highlights the role of state attorneys general (AGs) in countering rising prescription drug prices.
In a forthcoming article in the Southern California Law Review, legal scholars Michelle Mello and Rachel Sachs along with president emerita of the National Academy for State Health Policy Trish Riley combined a detailed review of state AG activities on drug affordability from 2016-2020 with in-depth interviews with nearly two dozen attorneys in state AG offices. They found numerous examples of state AGs bringing impactful lawsuits — like the multistate litigation led by Connecticut targeting a widespread price-fixing conspiracy among generic drug companies — as well as defending state laws, like Arkansas’ AG successfully defending the state’s regulation of the middlemen known as pharmacy benefit managers from an industry-led challenge before the U.S. Supreme Court in 2020.
Interviewees highlighted the benefits of being able to combine forces with other state AGs, the broad appeal of improving drug affordability, a general lack of political influence and interference on their work, and their considerable investigative powers and ability to bring enforcement action as keys to state AGs’ success in this arena. Yet they also noted numerous challenges, most notably limited resources — state AGs often lack the staff and capacity to take on all the industry’s harmful prescription drug pricing actions, particularly compared with the overwhelming resources of the pharmaceutical industry.
The article does have some limitations. It does not look at whether actions by state AGs actually made prescription drugs more affordable. The authors were also only able to interview attorneys from 17 states. Though geographically and politically diverse, attorneys interested in talking about how they’re taking on drug affordability could be a self-selecting group. Still, the article makes a compelling case that state AGs are a critical tool in the complex and multi-faceted effort to improve prescription drug affordability.
The authors argue AGs could have even more impact if their offices worked more closely with academic experts, had more resources, and state laws increased their authority to tackle high drug prices. While it’s important to gather more evidence on the impact of these state AG actions on both state and consumer finances, they certainly appear to be worthwhile investments, especially in the absence of stronger federal action.