Senator Cornyn’s Bureaucracy Empowerment Act

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Republicans always want to reduce the size of government—until they don’t.
 
Enter Senator John Cornyn, a Texas Republican, who has joined with Senator Richard Blumenthal, a Connecticut Democrat, to introduce the “Affordable Prescriptions for Patients Act.” (APPA)
 
A better name might be the “Bureaucracy Empowerment Act.”
 
Cornyn and Blumenthal seek to improve access to affordable brand-name prescription drugs by addressing two issues: “product hopping” and “patent thickets.”
 
These are relatively new terms to the drug industry, so we have to rely on Cornyn to define them. He says product hopping is when drug companies “make new versions of their drug, with minor reformulations, or will introduce a new version altogether” with the sole intent of protecting their patents and limiting generic alternatives.
 
Patent thickets are supposedly a strategic effort by drug companies to apply for multiple “patents on one drug—methods of manufacture, formulations, devices, uses, as well as composition of matter patents,” with a goal to “extend their exclusivity on the market.”
 
Now, drug companies, as well as companies in other industries, often come out with new-and-improved versions of their patented products. There’s nothing new about that. Indeed, we want innovation to be ongoing.
 
In addition, companies in many industries may have multiple patents on one or more of their products. There’s nothing new about that, either. One patents innovations, not products.
 
So who will decide when a drug company is applying for and protecting its patents as part of the normal course of business versus when a company is guilty of anti-competitive behavior and abusing the patent system? 
 
Why, the Federal Trade Commission (FTC).
 
The APPA invests the FTC with significant powers to determine when a drug company is engaging in anti-competitive behavior.  It would essentially empower the FTC to oversee prescription drug innovation and development in the United States.
 
While Cornyn may think that the FTC would act in a restrained and judicious manner while a Republican is president, the day will come when a Democrat is president again—and it may be sooner rather than later. A Democratic administration—think Bernie Sanders—could effectively use the FTC to stymie nearly all drug innovations.
 
It’s a remarkable transfer of new powers to a federal agency. Of course, Democrats have been doing that for years. Look at how much power the Affordable Care Act transferred to the Department of Health and Human Services. So no one should be surprised that Richard Blumenthal is on board.
 
But what’s Cornyn’s excuse?

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