A federal court ruling on the legality and constitutionality of Arkansas’s 340B nondiscrimination law might not come until sometime in 2023.
U.S. Senior District Judge Billy Roy Wilson on Monday issued an initial scheduling order in the drug industry lawsuit challenging the state law. It sets a proposed trial date of Jan. 3, 2023, at 9:30 a.m. in federal district court in Little Rock.
Pharmaceutical Research and Manufacturers of America (PhRMA) sued on Sept. 29. It asked the court to declare the law, Act 1103, unconstitutional and preempted by federal law and to enjoin the state from enforcing it against PhRMA and its member drug companies.
Act 1103 says, among other things, that pharmaceutical manufacturers shall not:
- Prohibit a pharmacy from contracting or participating with an entity authorized to participate in 340B drug pricing by denying access to drugs that are manufactured by the pharmaceutical manufacturer; or
- Deny or prohibit 340B drug pricing for an Arkansas-based community pharmacy that receives drugs purchased under a 340B drug pricing contract pharmacy arrangement with an entity authorized to participate in 340B drug pricing.
Arkansas Attorney General Leslie Rutledge (R) filed the state’s initial response to PhRMA’s suit on Oct. 25. She asked Wilson to dismiss the case on multiple procedural grounds, including failure to exhaust administrative remedies.
PhRMA initially challenged Act 1103 in a petition filed with the state insurance department. It filed the federal lawsuit while its petition before the insurance department was still pending.
On Oct. 5, state Insurance Commissioner Alan McClain signed an order ending the state proceedings as of Oct. 26, citing PhRMA’s federal lawsuit as the reason. McClain also ended his stay of enforcement of Act 1103 effective Oct. 26. A health care attorney who has been following the matter closely said the lifting of the stay means covered entities can begin filing complaints under Act 1103 with the state insurance department.
