Satya Marar

A recent U.S. Court of Appeals for the Third Circuit ruling upholding the federal Inflation Reduction Act (IRA)’s drug price negotiation program has been appealed to the U.S. Supreme Court, one of many challenges to the Act’s constitutionality. The IRA requires drugmakers to sell selected patented drugs to the government for its Medicare Parts B & D programs at a stipulated “maximum fair price”. If they don’t agree to these prices, then they face tax penalties on sales of the drug exceeding their profits from it, or the exclusion of all their drugs from Medicare and Medicaid purchases. This would foreclose access to up to 160 million patients, accounting for around 40% of US prescription drug spending or 20% of global prescription drug spending. US government purchases are valued at $200 billion annually.

A 2024 Republican election victory marks the end of the four-year Neo-Brandeisian antitrust experiment at the Federal Trade Commission (FTC) and Department Of Justice (DOJ). Spearheaded by FTC chair Lina Khan and DOJ attorney general for antitrust Jonathan Kanter, their movement sought to upend antitrust’s longstanding bipartisan consumer welfare-focused consensus. Instead, they focused on punishing businesses for bigness; opposing mergers and other business practices based on speculative rather than probable theories that of competitive harm; and orienting antitrust toward policy considerations outside economic competition, such as income redistribution, labor, and environmentalism.