The lawsuit, filed in federal district court in New Jersey, argues Medicare negotiations they violate the First and Fifth Amendments to the US Constitution.
Bristol Myers Squibb asked the court to declare the program unconstitutional and prevent the Department of Health and Human Services from forcing the company to act.
Bristol Myers Squibb’s arguments echo those it made last week Merck, the first company to sue the federal government over drug dealing. The U.S. Chamber of Commerce also sued HHS over the program, making similar arguments.
The Inflation Reduction Act, passed in 2022 on a narrow partisan vote, empowered Medicare to negotiate drug prices for the first time in the program’s six-year history. The law is a centerpiece of the Biden administration’s efforts to control rising drug prices and was a major victory for the Democratic Party.
Bristol Myers Squibb said its blood thinner Eliquis, used to treat blood clots and strokes, would be the subject of negotiations this year. The company generated $11.8 billion in revenue from Eliquis last year, which is about 25% of the company’s $46 billion total revenue for 2022.
The drugmaker also said Opdivo, which is used to treat several types of cancer, will be subject to Medicare negotiations in the future. Opdivo generated $8.2 billion in revenue in 2022, accounting for about 18% of the drugmaker’s total revenue for the year.
Bristol Myers Squibb argued that the federal government was forcing the company to enter into negotiations and ultimately agree to a deeply discounted price. The company argues that this violates the 5th Amendment’s protection against the government seizing private property without just compensation.
The drugmaker also argued that HHS was forcing the company to publicly present the program as a fair price negotiation. The company called the negotiations a fraud and claimed the federal government was forcing the drugmaker to “parrot its preferred political messages” in violation of the First Amendment.
In a statement after Merck’s lawsuit last week, HHS Secretary Xavier Becerra vowed to vigorously defend the deflationary law in court, saying, “The law is on our side.”
White House press secretary Karine Jean-Pierre also said in a statement after Merck’s lawsuit that the Biden administration is confident it will prevail in court.
“There is nothing in the constitution that prevents Medicare from negotiating lower drug prices,” Jean-Pierre said.