Maine group files suit over generic drug access

AUGUSTA – Maine Consumers for Affordable Health Care, a consumer advocacy group, has joined with similar groups across the country in what they claim is the first of many lawsuits against drug companies that are trying to keep generic versions of brand-name drugs off the market.

The group filed suit in Cumberland County Superior Court late Friday charging Bristol-Meyers Squibb with illegally blocking the generic sale of Buspar, a drug used to ease anxiety in elderly patients as well as many people with AIDS. Generic drugs typically cost 30 percent to 50 percent less than the brand-name version.

“I think this is just the beginning of much more collaboration between the consumer advocacy community,” said Joe Ditre of Maine Consumers for Affordable Health Care. “Here in Maine we have been fighting hard for a long time to bring down prescription drug costs. Going to the courts is one of our only recourses to contain the high prices of drugs.”

The Maine group joined several others in a class-action suit filed in a New York federal court, while separate state lawsuits also were filed in Florida and Massachusetts. All of the suits charge that Bristol-Meyers unlawfully sought to block the sale of a generic version of Buspar after its patent for the drug expired last November.

“Literally, at the eleventh hour, Bristol-Meyers came in and filed for another patent,” Ditre said. “And just a few weeks ago, a federal judge ruled what they tried to do was illegal.”

Just as Mylan Laboratories Inc. was loading trucks with a generic version of the drug last November, Bristol-Meyers filed for another patent, an act that blocked shipment of the generics under a 1984 federal law known as the Hatch-Waxman Act. The law was intended to promote competition between generic and brand-name drugs.

“By creating new, and probably impermissible, ways to extend its monopoly, Bristol not only limits the public’s access to low-cost drugs, but impedes the very innovation that Hatch-Waxman is designed to promote,” wrote Federal District Court Judge Ricardo Urbina.

But Bristol-Meyers points out a federal judge in another jurisdiction ruled differently in a similar case. Patrick Donohue, a company spokesman, denied the drug maker has done anything wrong.

“We feel the suits are without merit and we will defend ourselves vigorously,” he said. “We believe the patents are valid and were properly listed according to the law.”

He declined to discuss company plans to fight the lawsuits in either state or federal courts.

The Maine lawsuit charges the company violated the state Unfair Trade Practices Act and seeks triple damages for Mainers who have paid the higher price for Buspar since November.

Bristol-Meyers sells $700 million worth of Buspar per year. When its patent expired, other drug makers, such as Mylan Labs, sought to make a generic version. Consumer advocates said the generic version would have been significantly less expensive than the brand name, probably about half the $100 a month the typical prescription now costs.

While there are no overall sales figures available for Maine, Buspar is among the top 50 prescribed drugs in the state Medicaid program. The two most commonly prescribed drugs cost taxpayers just over $1.2 million last fiscal year.

“We don’t know what the overall cost to Maine consumers has been,” said Peter Thompson, the attorney who filed the Maine lawsuit. “But we know they are paying more for the brand name than they would the generic version of the drug.”

Ditre said the class-action suit would benefit all Mainers, whether they pay for their own drugs or have them paid for through an insurance plan, or are covered by either Medicaid or Medicare.

If the lawsuit were successful, taxpayers would benefit, Thompson said. But, he said the consumer group has not asked the state to join in the suit.

Ditre declined to identify which other drug companies might be targeted for further class-action lawsuits. But, he said, a number of suits are under consideration by the Prescription Access Litigation Project, the national coalition set up by various consumer advocacy groups to coordinate legal action against the drug industry.