State Action to Lower Prescription Drug Prices: Navigating Patent Preemption

The high cost of prescription drugs harms health and exacerbates disparities. Leveraging their traditional public health powers, states have pursued and adopted various innovative approaches to lower prescription drug prices. But these efforts are often met with litigation challenges, which sometimes derail the policies or chill policy momentum.

To demystify litigation challenges, the Center for Health Policy and the Law has launched a series of publications addressing the common arguments that are made in litigation challenging state prescription drug pricing policies. In the first installment of the series, we addressed arguments over the Dormant Commerce Clause. In this second installment, we examine arguments over federal patent preemption, explain how the courts have addressed them, and lay out how policymakers and other stakeholders may craft sound policies that withstand patent preemption scrutiny.