Seize the drugs!

The mythomaniac in the White House started his day, for some reason, tweeting about prescription drug prices.

He had made similar claims back in January on Twitter and again in May during a Rose Garden appearance.

He was, of course, wrong. Some prescription drug prices did decline last year. But for every drug that dropped in price, 96 drugs saw increases. In January of this year alone, when Trump boast-tweeted a similar lie, the prices for 1,026 prescription drugs increased by a median of about 6%. In the last six months, prescription drug prices have risen four times faster than inflation.

The skyrocketing cost of pharmaceuticals is a major issue that affects a huge proportion of the electorate. And they are paying close attention to this issue which is at once a pocketbook issue and a health care issue, both high on most people’s priority lists.

Trump has a big reason to be concerned with how this issue will play out in the election. During the 2016 campaign he made reducing drug prices a key element of his appeal for votes. His stump speech included vows to “negotiate like crazy” to lower drug prices by “billions and billions and billions” of dollars. There have been no negotiations. Of course not. Why actually follow through on a campaign promise when simply lying about the lack of results is so much easier?

Trump’s tweet this morning may have been inspired by an editorial in today’s New York Times, Sound, Fury and Prescription Drugs (paywall). The editorial noted Trump’s lack of progress on the issue. 

It is an interesting editorial with a number of suggestions for tackling the problem. (Although the Times skipped my own favorite suggestion for such things … getting rid of corporate capitalism and the insane greed that comes with it.)

There was one idea, briefly mentioned, that caught my attention and I decided to look into it a little bit. It turns out that there is a law which allows the federal government to seize drug patents and produce the drugs itself and sell them at cost to patients. (28 U.S. Code § 1498, known as Section 1498, if you’re interested.)

Section 1498 has never been used for prescription drugs, but it has been used by the federal government in the past. A lot.

In the 1960s, the U.S. military invoked the law in order to obtain much-needed but too-costly drugs for use by soldiers and saved tens of millions of dollars. Not to mention the soldiers’ lives that were no doubt saved. It was so effective that pharmaceutical companies poured millions into lobbying against its use. They were mostly successful and little use of the law, with regard to drugs, has been made since then.

According to an article in the Yale Journal of Law and Technology…

The sole recent use of § 1498 in the pharmaceutical context was in 2001, when then-Secretary of Health and Human Services (HHS) Tommy Thompson raised the possibility of invoking § 1498 during the anthrax scare that followed the September 11th terrorist attack. Thompson’s public discussion of importing generic versions of the antibiotic ciprofloxacin under § 1498 drove the relevant patent holder, Bayer, to cut its prices by half. This example illustrates the power of § 1498 in the pharmaceutical context: It provides the government with the necessary leverage to obtain major price reductions, whether through voluntary agreements or generic procurement. A Prescription for Excessive Drug Pricing. Emphasis added.

As reported in the same article, the federal government does continue to invoke Section 1498 to this day, just not with regard to drugs. One example: they used it so private banks can get access to software for spotting fraudulent checks. There are many more cited in the Yale Journal article:

…the government today routinely relies on § 1498 to use or acquire patented inventions from non-patent holders. Subjects range from electronic passports to genetically mutated mice.  In 2009, the Department of Treasury used § 1498 to shield private banks from liability for using software to help detect fraudulent checks. In another case, the U.S. Army Corp. of Engineers used patented waste removal methods to clean up hazardous waste. Over the past decade, the National Institute of Health, National Gallery of Art, National Park Service, and General Services Administration have also utilized § 1498. Furthermore, the government has invoked § 1498 not only when the patent holder is unwilling or unable to negotiate a license with the federal government and infringement is the only way for the government to use the patented technology, but also when the patent holder is willing and able to negotiate. A Prescription for Excessive Drug Pricing

If this law can be used to benefit private banks, it can and certainly should be used to reduce the price of insulin so that people aren’t tragically cutting back their dosages because they can’t afford it. If the government can use 1498 to reduce the cost of mutated mice, it can use its power to reduce the cost of drugs to prevent deaths from opioid overdoses.

Trump failed to “negotiate like crazy,” so we should insist that the government seize like crazy.

Carpe diem! Seize the drugs!

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