[Congressional Record Volume 165, Number 181 (Wednesday, November 13, 2019)]
[Senate]
[Pages S6520-S6522]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. The clerk will report the nomination.
  The bill clerk read the nomination of Steven J. Menashi, of New York, 
to be United States Circuit Judge for the Second Circuit.
  The PRESIDING OFFICER. The Senator from Connecticut.


                   Unanimous Consent Request--S. 1416

  Mr. BLUMENTHAL. Mr. President, I am proud to be here to advocate on 
behalf of a bill that has enjoyed, rightly, bipartisan support: the 
Affordable Prescriptions for Patients Act.
  We all know that the astronomically rising costs of prescription 
drugs are a burden--in fact a bane for Americans regardless of where 
they live, regardless of their party, race, religion, or age, but 
particularly for our seniors. The choice between paying the mortgage, 
putting food on the table, and buying prescription drugs has become a 
daily challenge for people across the country.
  This bill offers a positive, solid step toward ending abuses in the 
use of patents--abuses that are called patent thicketing and product 
hopping--that all too commonly raise the cost of prescription drugs and 
preclude access for the people who need those drugs the most.
  This effort has been a bipartisan one involving many of us in this 
Chamber. It passed from the Judiciary Committee unanimously. It is a 
testament to the still-possible bipartisan cooperation on an issue of 
paramount concern to the people of America that we have reached this 
point of bringing it to the floor of the Senate.
  I am proud to have worked on this measure with my colleague from 
Texas who has really helped to lead this effort, Senator Cornyn, who is 
here on the floor with me, and I am happy to yield to him now.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I thank the Senator from Connecticut for 
his leadership.
  At a time when people see bipartisanship in short supply in 
Washington, DC, this is one area where we can actually make some real 
progress for the people we represent.
  We all know that climbing healthcare costs are keeping people up at 
night. Many people reached out to me in my office about the impossible 
decisions they are required to make in order to keep pace with rising 
prescription drug costs--particularly the out-of-pocket costs--whether 
they pay some bills and have to defer or not pay others; whether they 
cut their pills in half or self-ration the medications, which is 
dangerous to their health, or don't fill prescriptions altogether 
because they simply can't afford the out-of-pocket costs. No family 
should be required to make those sorts of decisions.
  Sadly, I know my constituents in Texas are not alone. The Kaiser 
Family Foundation poll in September found that the No. 1 healthcare 
concern of the American people is prescription drug prices. This is 
something the President has said he wants to address, the House has 
said they want to address, and the Senate has said we want to address, 
and this legislation we are talking about will help move the ball in 
the right direction.
  A whopping 70 percent of people think growing prescription drug costs 
should be the top priority for Congress, which should make it our No. 1 
item on our to-do list. The good news is, we are making some progress. 
Here in the Senate, we have taken a bipartisan approach, which is the 
only way to actually get things done in Congress. We talked to every 
major player in the supply chain, and we asked questions about whether 
confusing practices that are not transparent to outsiders are all 
combining to drive up costs.
  What I find seriously concerning are the anti-competitive behaviors 
of some of the drug manufacturers, the gamesmanship, particularly when 
it comes to our patent system. We know companies pour a lot of time and 
money into the research and development of new medications, and we 
don't want to do anything to stop that. We want to incentivize that so 
that they are able to recover their costs and perhaps make a profit 
when the drug turns out to be successful. But we don't want them 
playing games with the patent system in a way that prevents others at 
some point, after that period of exclusivity, from being able to 
compete with a generic alternative.
  Ninety percent of the drugs we take are generic, and that is why they 
are so affordable and so inexpensive, but for the top 10 percent of 
branded drugs that people take, many of them simply are unaffordable. 
These patents I refer to do protect the intellectual property for these 
key drugs and are an important part of the incredible innovation that 
occurs here in the United States, but increasingly we are seeing 
companies using the patent system as a shield for competition beyond 
the life of the patent.
  It is time to put a stop to that. We can do that today. We can begin 
that process today. That is exactly why I introduced the Affordable 
Prescriptions for Patients Act with the Senator from

[[Page S6521]]

Connecticut. It targets two specific practices used by drug companies 
to keep prices high. First is product hopping, which occurs when a 
company develops a reformulation of a product that is about to lose its 
exclusivity period and then pulls that original product off the market. 
This is done not because the new formula is necessarily more effective 
but because it prevents generic competitors for that product that has 
now been pulled off the market. The second phenomenon we are trying to 
combat is something called patent thicketing, which occurs when an 
innovator uses multiple, overlapping patents with identical claims to 
make it nearly impossible for competitors to enter the field.
  This is not how patents were supposed to be used, and we shouldn't 
allow these anti-competitive practices to continue. In one case 
involving the drug HUMIRA, the most popular drug being prescribed 
today, there are more than 120 separate patents for essentially the 
same molecule. Meanwhile, patients can't get access to competitive 
drugs that probably would be cheaper here in America, while there are 
four approved alternatives in Europe.

  The American people simply should not have to put up with this. We 
need to stop companies from manipulating the system and keeping 
competitors tied up in courtrooms so that patients can start to feel 
some relief.
  Patients aren't the only ones who would benefit from this bill. The 
Congressional Budget Office released a cost estimate and found that it 
would lower Federal spending by more than half a billion dollars over 
10 years. That is not a whole lot of money in the grand scheme of 
things, but when you consider what the impact would be in the private 
insurance market, too, that begins to add up, and it adds up where it 
counts the most when it comes to seniors and other patients paying out 
of pocket for their copays and deductibles in order to get the drugs 
they need.
  This bill really checks every box. It protects innovation, increases 
competition, lowers prices for patients, and saves money for taxpayers. 
Not surprisingly, as the Senator from Connecticut pointed out, it has 
strong support on both sides of the aisle. The Judiciary Committee, 
which ordinarily is a pretty contentious place, unanimously voted this 
bill out of committee. Our friend from Illinois, Senator Durbin, and 
Senator Murray from Washington--two Members of the Democratic 
leadership--are both cosponsors of the bill, which shows just how 
noncontroversial this is.
  I think it is time that we pass this legislation and let our 
constituents know we have heard their concerns and we are committed on 
a bipartisan basis to bringing down drug prices.
  Mr. President, as if in legislative session, I ask unanimous consent 
that the Senate proceed to the immediate consideration of Calendar No. 
132, S. 1416.
  I ask unanimous consent that the committee-reported substitute be 
withdrawn and the Cornyn amendment at the desk be agreed to; that the 
bill, as amended, be considered read a third time and passed; and that 
the motion to reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. DURBIN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, let me start by saying I support this 
bill, the bill offered by Senators Cornyn and Blumenthal. It is 
bipartisan in nature and passed the Judiciary Committee. I not only 
voted for it, I cosponsored it, and I think it should become the law of 
the land. It will be helpful in reducing the cost of pharmaceuticals.
  I am offering a modification to the bill. I believe this modification 
is one that should be passed by the Senate as well. In fact, it did 
pass the Senate last year by a voice vote. Not a single Senator 
objected when it passed the Senate last year. We know--I have been told 
by my colleagues--that they support the concept, but they are not 
alone. The bill I am offering is also supported by the American Medical 
Association; the American Hospital Association; 88 percent of the 
American people, Republicans and Democrats; President Trump; his health 
Secretary, Dr. Azar; the AARP--a long list.
  What could I possibly propose that would have all of these people 
supporting it? Simple. When the drug companies decide to run an ad on 
television--and you see a lot of them, don't you? The average American 
sees nine every day. All we ask is that included in the ad, they 
disclose the cost of the drug.
  How did I pick this as the cost for the drug? I didn't pick it; it 
was chosen by the pharmaceutical company. That is the list price of the 
drug. They can go on to say ``You will not have to pay that amount,'' 
but I believe the American people should know what the drugs cost.
  The most heavily advertised drug in America today is HUMIRA. HUMIRA 
is used for forms of arthritis and psoriasis. But few Americans know, 
as they watch people sitting by the swimming pool with clear skin, that 
HUMIRA costs $5,500 per month. The reason I want to disclose this is 
because I think consumers have the right to know.
  Someone is going to pay that amount--your insurance company. Somebody 
is going to pay that amount. When Blue Cross and Blue Shield of 
Illinois says that the No. 1 driver in health insurance premiums is 
high prescription drug prices, I think people ought to know. It is not 
just a matter of being in a bathing suit without a red patch on your 
elbow; it is $5,500 per month.
  President Trump believes that disclosure should be made, the 
Secretary of Health and Human Services believes it, the American 
Medical Association, the Hospital Association, all the people I 
mentioned, as well as almost 90 percent of Democrats and Republicans. 
Who opposes this? Who would oppose disclosing the price of the drug? I 
will bet you are guessing the pharmaceutical industry, and you are 
right. They are looking for one Senator who will object to what I am 
offering. That is what they need. They need just one Senator to say no, 
and frankly I am afraid we are going to face that this afternoon.
  The bottom line is this: If you believe consumers in America have a 
right to know the cost of a drug, if you believe the pharmaceutical 
companies have a responsibility to disclose it, if you believe high 
prescription drug prices are unfair and costing a lot more in our 
healthcare system than they should, then support this basic measure 
that passed the Senate last year without one negative voice. None. None 
whatsoever.
  So having reserved the right to object, I ask that the Senator modify 
his request so that in addition to the pending request, the Finance 
Committee be discharged from further consideration of S. 1437 and the 
Senate proceed to its immediate consideration; that the Durbin-Grassley 
amendment at the desk be agreed to; that the bill, as amended, be 
considered read a third time and passed; that the Durbin-Grassley 
amendment to the title be agreed to; and that the motions to reconsider 
be considered made and laid upon the table with no intervening action 
or debate.
  The PRESIDING OFFICER. Would the Senator modify his request?
  Mr. TOOMEY. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. President, first let me say that I think Senator 
Cornyn's legislation is very constructive. I fully support it. I think 
it would result in lower costs for consumers. It is very commendable. I 
think we should pass it. I am sympathetic with the idea of requiring 
greater transparency on healthcare costs generally, but I have 
significant policy concerns and process concerns with the proposal from 
the Senator from Illinois.
  The policy concern, broadly, is that what his legislation would do is 
it would single out one industry and require a mandate that in their 
direct-to-consumer advertising, they provide systematically misleading 
information to consumers. It doesn't strike me, obviously, as a good 
idea to mislead people, including in this context.
  Why do I say it is misleading? It is because the legislation requires 
the list price or the wholesale acquisition price of a drug to be the 
price that is put in the ad, despite the fact that almost no one ever 
pays either of those prices. There are huge rebates that are built into 
the system.
  We can have a good debate about whether it is a good model by which

[[Page S6522]]

the government has created all of these perversities in our healthcare 
delivery system, but that is what it is. The truth and the reality is 
almost no one pays either the list or the wholesale acquisition price. 
Think about it. If you are on Medicaid, you pay zero. If you are on 
Medicare, you often pay zero--usually, nearly zero. If you have private 
insurance, it varies enormously from zero to something significantly 
different, but almost no one pays the price that the Senator from 
Illinois would require to be posted in all direct-to-consumer 
advertising.
  Think about some of the unintended consequences. The number that 
would have to be in the ad is way higher than what almost anyone 
actually pays. Think of what could happen. I can imagine senior 
citizens sitting there watching an ad. Maybe they see a medicine they 
actually would benefit from, and then at the end there is some huge 
number that does not reflect--it doesn't come close to reflecting what 
the actual cost would be, but it is a big number so that a senior 
citizen would understandably say: Gosh, I can't afford that. I guess I 
can't pursue that therapy, even though they might need that. I am sure 
that is not the intended consequence of this legislation, but I am 
pretty sure it would happen.
  It is also peculiar to me that the authors of this legislation choose 
to single out a small fraction of the healthcare industry to impose 
this mandate. Prescription drug spending is about 10 percent of 
healthcare. Hospitals are about 32 percent, but I haven't seen that we 
are going to impose this. If you look at the rate of price increases in 
various sectors of healthcare, you see that actually prescription 
drugs, over the last 20 years--their increase in prices is considerably 
less than hospital services and considerably less than medical care 
services.
  Then, of course, we have other sectors in the economy altogether. Are 
we going to put mandates on colleges, for instance? The rate of tuition 
increase in colleges is much greater than the rate of increase of 
prescription drugs in recent years. I haven't heard a proposal yet, but 
maybe one is coming that would require this of other industries as 
well.
  If I didn't know better, I would think it seems part of a theme to 
vilify the industry that has developed the therapies that allow us to 
live longer, healthier, and save lives. Most importantly, maybe it will 
not lower costs. It is not going to lower costs for consumers. The only 
way we are going to do that is if we better align the incentives of the 
consumer and the person paying.
  In contrast, by the way, the Finance Committee and HELP Committee 
reported out legislation that actually would lower out-of-pocket costs 
for prescription drugs. We have Senator Cornyn's legislation that I 
think absolutely would lower the cost of consumer prescription drugs. 
Yet that is not what is on the floor today from the Senator from 
Illinois.
  Now, despite my policy concerns--and they are serious--I actually 
think we ought to debate these things. We ought to put this kind of 
legislation on the floor. We ought to have a debate. We ought to have a 
vote, but this is complicated, and it is fraud. We should not be trying 
to just pass this by unanimous consent. This legislation has not gone 
through committee, and contrary to my colleague from Illinois--this 
actual piece of legislation has never had a vote as a freestanding 
matter. A version of it that is different from what is being offered 
today was buried in a larger legislation which passed. That is not the 
same as scrutinizing this policy, subjecting it to amendments, and 
deciding on it. That is what I think we ought to do.
  Unlike my colleagues on the other side who have been consistently 
preventing us from taking up legislation, such as the approps bills 
they have not allowed us to get on to or the SECURE Act, on which I 
offered a unanimous consent process for us to take up and process, I 
think we ought to consider this legislation, even though I don't think 
I would support the final product.
  What I suggest we do is let's move on to the Defense appropriations 
bill. Arguably, the most fundamental responsibility of Congress is to 
fund our national defense. Let's make in order as the first amendment 
after the managers' amendment the amendment of the Senator from 
Illinois that he has just described. I don't support it, but I support 
his right to have a debate and have a vote. Let's go on to an 
appropriations bill and let's make his amendment in order as the first 
amendment. We can debate it; we can vote it; and we will all live with 
the consequences. I think that is what we are here for. I think the 
purpose of the Senate is to take on these issues, put them on 
the floor, have a debate, and have a vote. I am willing to live with 
the outcome of that.

  Mr. President, I ask that the Senator from Illinois modify his 
request and that the Senate proceed to the immediate consideration of 
Calendar No. 132, S. 1416. I further ask unanimous consent that the 
committee-reported substitute amendment be withdrawn and that the 
Cornyn amendment at the desk be agreed to; that the bill, as amended, 
be considered read a third time and passed; and that the motion to 
reconsider be considered made and laid upon the table; and finally, 
that following disposition of S. 1416, the Senate proceed to the 
immediate consideration of H.R. 2740, and following the offering of a 
substitute amendment by Senator Shelby or his designee, the first 
amendment in order be an amendment offered by Senator Durbin or Senator 
Grassley, the text of which is identical to S. 1437, as amended, which 
is at the desk.
  The PRESIDING OFFICER. Does the Senator modify his request?
  Mr. DURBIN. Reserving the right to object.
  I am not a zoologist, so I don't know if crocodiles can cry, but I am 
very concerned about the argument the Senator from Pennsylvania made. 
He is actually standing here, in defense of senior citizens, by 
objecting to disclosing the list price that the pharmaceutical 
companies charge for these drugs. I didn't choose that price; they 
chose that price.
  Mr. TOOMEY. Will the Senator yield?
  Mr. DURBIN. I will not yield until I am finished.
  I said they could put a disclaimer on that saying maybe you will not 
pay the full list price depending on your insurance or coverage, but to 
argue that you are standing here in defense of senior citizens and 
denying this information to them and that the only way we can consider 
this measure is call up the Department of Defense appropriations bill--
from where I am standing, this measure, which passed the Senate without 
your objection last year, should pass now with the underlying 
legislation. Let's get this done in a comprehensive way to help 
seniors, and let's not stand in defense of pharmaceutical companies. 
They have plenty of people to defend them.
  The PRESIDING OFFICER. Does the Senator object to the modification?
  Mr. DURBIN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Is there objection to the original request from the Senator from 
Illinois to modify his request?
  Mr. TOOMEY. I object.
  The PRESIDING OFFICER. Objection is heard.
  Is there objection to the Senator from Texas?
  Mr. SCHUMER. Reserving the right to object.