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Lilly, Novartis, and United Therapeutics want the appeals courts hearing their 340B contract pharmacy cases to follow the lead of the appeals court in AstraZeneca, Sanofi, and Novo Nordisk’s cases and uphold their 340B policies.

Drugmakers Urge Appeals Courts to Follow Third Circuit Ruling and Uphold 340B Contract Pharmacy Restrictions

Drugmakers Lilly, Novartis, and United Therapeutics this week urged federal appeals courts in Chicago and Washington, D.C., to follow the lead of the appeals court in Philadelphia and uphold their restrictions on 340B providers’ use of contract pharmacies.   

Lilly on Monday sent a letter to the Seventh Circuit Court of Appeals and Novartis and

UT on Tuesday sent letters to the District of Columbia Circuit Court of Appeals following AstraZeneca, Sanofi, and Novo Nordisk’s victory Monday in the Third Circuit Court of Appeals. That court ruled that the 340B statute does not require drug makers to deliver discounted 340B drugs to an unlimited number of contract pharmacies. 

Lilly told the Seventh Circuit Court and Novartis and UT told the D.C. Circuit Court that their own pending appeals are based on facts like those in AstraZeneca, Sanofi, and Novo Nordisk’s cases. All six companies are challenging the U.S. Health Resources and Services Administration’s determinations that the companies’ 340B contract pharmacy policies are illegal.

In its Jan. 30 letter to the Seventh Circuit Court, Lilly said, “The Third Circuit considered the same question at issue here: whether the Department of Health and Human Services may require drug manufacturers to deliver 340B discounted drugs to an unlimited number of contract pharmacies without conditions. The court unanimously held near-identical violation letters issued against other manufacturers were unlawful” and it enjoined HHS from enforcing its reading of the 340B statute against them.

“That decision confirms the near-identical violation letter here is unlawful and that Lilly’s contract-pharmacy initiative does not violate Section 340B,” Lilly said.

Novartis said in its letter that the Third Circuit ruling was based on “materially identical facts” as in its own case and urged the D.C. Circuit Court to adopt the Philadelphia court’s rationale.    

“For the reasons explained in the Third Circuit’s opinion and Novartis’s brief, this court should adopt the same result as its sister circuit,” Novartis said.

“The Third Circuit’s unanimous decision is directly on all fours here,” UT’s letter to the D.C. Circuit Court said. “The violation letters issued in that case are virtually identical to the one issued to UT here, and the government’s arguments in that case and this one is indistinguishable.”

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