[Congressional Record Volume 166, Number 202 (Tuesday, December 1, 2020)]
[Senate]
[Pages S7127-S7128]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Business Before the Senate

  With the work of one Congress drawing to a close and the start of a 
new one just around the bend, this time of year is typically as busy as 
it is productive. We still have a lot to do, including funding of the 
government. With the current continuing resolution expiring on December 
11, we need to get the next and final version of the National Defense 
Authorization Act to the President's desk and, as I said, hopefully, 
agree on another coronavirus relief bill.
  These priorities seem to dominate the headlines but represent only a 
fraction of what I hope we can accomplish in the waning days of this 
Congress.
  Before the pandemic turned the work of Congress on its head, we were 
making serious progress on countless bills to help improve the lives of 
the American people, with a bipartisan focus on prescription drug 
pricing, for example.
  A poll last fall found that the No. 1 healthcare item people want 
Congress to address is prescription drug costs. Since 2014, 
prescription drug prices have surged by 33 percent--more than any other 
medical product or service.
  I am honored to sit on both the Senate Finance and Judiciary 
Committees, where we have been looking at these high costs and some of 
the behavior behind them. And, yes, some of this is caused by bad 
behavior.
  There are pharmacy benefit managers who negotiate backdoor rebates--
kickbacks, basically--which drive up out-of-pocket costs for consumers. 
And what I find seriously concerning is that there is anticompetitive 
behavior by some drug manufacturers to try to manipulate higher prices 
and to maintain their patent, even though, under ordinary 
circumstances, the time for that patent would have expired, and it 
would have gone to generic or biosimilar competition.
  Some companies have figured out how to game the system to prevent 
those lower cost competitors from ever reaching the market. I think the 
most popular prescription drug in America is HUMIRA, which is, by all 
accounts, nearly a miracle drug. It is used to treat arthritis and a 
number of other conditions, and it has been available on the market for 
17 years.
  Now, you typically think of expensive drugs like those that come to 
the market that are patented to preserve the investment that has been 
made through the research and that has produced a lifesaving drug but 
not one that has been around for nearly two decades. Why is it that 
that hasn't gone from branded drug, protected by a patent with 
exclusive rights to sell it, to a generic or biosimilar competition?
  Well, AbbVie, the company that makes HUMIRA, has demonstrated how to 
game the system so that no competition can ever enter the market and 
bring those drug prices down as a result, and they remain the sole 
provider of this ubiquitous drug.
  What they have figured out, through, I am sure, a lot of smart 
lawyers and others, is how to weave an intricate maze of overlapping 
patents, which make it nearly impossible for a competitor to come to 
market.
  To date, there are five competitors to HUMIRA available in Europe, 
but all are blocked from being sold here in the United States until 
2023. How is that possible? Well, they have effectively found loopholes 
that allow them to create a monopoly. And without any action from 
Congress, patients will continue to pay higher prices for drugs like 
HUMIRA that should cost a fraction of the current sticker price.
  Now, to be clear, patents themselves are not the enemy. It is 
important that we protect the intellectual property of people who 
create new lifesaving or life-extending drugs, like HUMIRA. But patents 
and exclusivity periods are designed for a purpose; that is, to allow 
these drug manufacturers to recover their cost and maybe, just maybe, 
make a profit.
  The problem is not the patent. The problem is the abuse of those 
patents by some of the pharmaceutical companies. This, of course, is 
driven by a desire to increase their bottom line, which is 
understandable, but it is no excuse for manipulating or gaming the 
patent system.
  As a result, it is becoming more and more difficult for patients to 
continue to be able to afford the drugs they need. And for folks who 
have lost their jobs or healthcare during the pandemic, it has made 
many of these drugs simply unaffordable.
  Last year, I introduced bipartisan legislation with our colleague 
from Connecticut, Senator Richard Blumenthal, to take aim at these 
corrupt practices.
  Our bill is called the Affordable Prescriptions for Patients Act, and 
it streamlines the litigation process by limiting the number of patents 
these companies can claim, so companies are spending less time in the 
courtroom and, hopefully, encouraging the transition from branded, 
patented drugs to the lower cost generic or biosimilar competition.
  Our bill would allow competitors to resolve patent issues faster and 
bring their drugs to market sooner. And, of course, more competition 
means lower prices for patients.
  This legislation was specifically designed not to stifle innovation. 
It doesn't limit patent rights, and it doesn't cost taxpayers a dime. 
In fact, the Congressional Budget Office estimates it would actually 
lower Federal spending by more than half a billion dollars over 10 
years--and that is just for the government reduction cost, not the cost 
savings to consumers or private health plans. We know there would be 
significant savings for consumers with private health insurance as well
  So what happened to this bill we introduced last year? Well, it 
passed unanimously in the Judiciary Committee last June. Not a single 
Senator on a famously contentious committee like the Judiciary 
Committee, where we have a lot of very talented Democrats and 
Republicans--not a single Senator opposed it in the Judiciary Committee 
because it made so much sense.
  With no concerns over the policies laid out in the bill, I came to 
the Senate floor last fall to ask unanimous consent that it be passed. 
But in the runup to the November 3 election, the Democratic leader 
blocked the legislation. He singlehandedly stopped this commonsense, 
bipartisan legislation from advancing to the House.
  To make matters worse, he didn't just do it once; he did it twice. 
The Democratic leader went so far as to call my attempt to pass this 
commonsense bill ``a manipulative charade'' and ``a little game.''
  This is far from a game. It is a downright shakedown of patients who 
are struggling to afford the drugs they need to improve their quality 
of life or to survive.
  I continue to hear from my constituents back home in Texas who feel 
burdened, confused, and downright frustrated by rising out-of-pocket 
costs at the pharmacy. Medications they have been taking for years just 
keep getting more and more expensive, with no explanation behind the 
increase.
  Another famous example is the cost of insulin, a drug that has been 
around, I don't know--the Presiding Officer would know better than I 
would--maybe 50 years or longer. You would think low-cost alternatives 
would be available, but the cost of insulin just keeps going up and up 
and up as manufacturers learn how to game the system to maintain the 
maximum price, and, in the meantime, it results in less affordability 
by the consumers who need it who may ration their insulin. As we heard 
from one witness at the Finance Committee, as the Presiding Officer 
will remember, a woman--I believe she was from Indiana--talked about 
her son continuing to live at home, putting off life-changing 
experiences like perhaps getting married or buying a house because he 
was worried about his ability to continue to pay the deductible and the 
copay for the insulin that was important for him to survive.
  As COVID-19 continues to create new stresses for the American people 
regarding their health, this is a bill whose time has clearly come. It 
is clear that the problem won't go away without action by Congress, and 
so I would hope that now that the election is over,

[[Page S7128]]

the Democratic leader would stop blocking this bipartisan bill that 
Senator Blumenthal and I have introduced and that passed unanimously 
out of the Judiciary Committee.