Attorney General Lynn Fitch urges FDA to continue to support drug accessibility and affordability through FDA’s Orange Book (September 1, 2020)

23 state and territory AGs concerned expansive reading of the Orange Book blocks generics for insulin and other drugs

By Attorney General Communications

Attorney General Lynn Fitch led a bipartisan coalition of 23 state and territory attorneys general in signing a letter urging the Food and Drug Administration to prohibit use of the FDA Orange Book to block competition.

“Insulin is a life-saving necessity for over 370,000 Mississippians with diabetes and one for which there is no substitute,” said Attorney General Lynn Fitch.  “In the prescription drug market, competition is critical. As an advocate for Mississippians, I will continue to work with partners across the country to promote the safety, efficacy, and affordability of all drugs.”

 In the letter, a response to a call for public comment by the FDA, the attorneys general express their concern with the affordability of drugs and devices, calling on the FDA to prohibit companies from listing device and component patents in the FDA’s Orange Book. This request is consistent with the recent First Circuit decision in In re Lantus, which addressed component patents, and in the spirit of the Hatch-Waxman Drug Price Competition and Patent Term Restoration Act, which established a balanced framework to benefit drug development and accessibility.

The Orange Book enables the branded drug manufacturer to obtain an automatic thirty-month suspension of the FDA’s approval of any potential generic competitor claiming a listed patent. Because of this, Orange Book eligibility requirements for patents are extremely important and are ripe for abuse by drug delivery device patents.

The comments describe insulin delivery devices as an example of how this practice can contribute to oligopoly prices and limited options, and the detrimental impact that has on our society. Despite having been discovered almost a century ago, there are few generic insulin products in part because insulin manufacturers listed drug delivery device patents improperly in the Orange Book. Current research, indicates that one in four Americans with diabetes has reported cost-related skimping or skipping on an insulin dose due to a near tripling of costs over the past decade for the four most common insulin formulations.

Joining the Mississippi and District of Columbia-led letter are state and territory attorneys general of Alaska, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Montana, Nevada, New Mexico, Oregon, Puerto Rico, Rhode Island, Virginia, Washington, and Wisconsin.

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