As President Joe Biden works to garner support for his stalled Build Back Better bill—which would help rein in the cost of a handful of expensive drugs—Michigan’s attorney general is taking a different approach to the problem.
Wednesday, Attorney General Dana Nessel announced she has filed for court approval to investigate Eli Lilly for charging excessive prices for its insulin. Lilly is one of three companies in the U.S.—along with Novo Nordisk and Sanofi—that dominate sales of the diabetes treatment.
Nessel has asked an Ingham County judge to sanction the probe under the Michigan Consumer Protection Act (MCPA). But, to do that, a judge would have to circumvent two rulings from the state’s Supreme Court, from 1999 and 2007, that prevent such actions under the MCPA.
If approved, the attorney general could require Lilly to turn over documents and make company officials available for interviews.
“The average out-of-pocket cost of a single vial of insulin is nearly $100,” Nessel, a Democrat, said in a statement. “No Michigander should have to face that kind of cost for life-saving medicine. While drug companies profit off of people's health, they also benefit from a current market in which they control the pricing. Enough is enough.”
In a statement to Fierce Pharma, Lilly pointed out that anyone is eligible to purchase a monthly prescription of its insulin for $35 or less, regardless of their insurance status. The average monthly out-of-pocket cost for Lilly insulin has dropped 27 percent, to $28.05, over the past four years, the company said.
"Lilly is deeply disappointed by the false accusations and inaccurate claims about Lilly’s insulins that the Michigan attorney general is making," Lilly said. "These claims are particularly surprising given the multiple affordability solutions that Lilly offers."
In Nessel’s statement announcing her filing, she cites the two Michigan Supreme Court rulings. Both made the interpretation that members of any industry that is “generally regulated” would be deemed exempt from the MCPA.
“These opinions have served to end many consumer cases and have prevented countless others from ever beginning. Both were wrongly decided,” Nessel said in her announcement.
If the court initially decides not to allow the investigation, Nessel said her department will appeal the previous two decisions to “rectify the harm.”
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In the court filing, Nessel wrote that insulin prices range from $75 to $2,000 monthly, causing many to take less than prescribed, severely restrict their diet or opt for a less-effective alternative.
“These practices have caused serious disability and even death in some patients,” the complaint said.
Lilly maintains that it has adhered to all laws in providing insulin to Michigan residents. It also encouraged anyone paying more than $35 for a monthly prescription to contact its Diabetes Solution Center.
"Lilly welcomes systemic solutions and new public policies, such as copay caps on insulins like the one Governor Gretchen Whitmer has proposed, which could bring much-needed relief to people who face higher out-of-pocket costs for their medications," Lilly said. "Until actual reforms fill these gaps, Lilly remains firmly committed to providing affordability solutions to people who need them."
Last month, a House Oversight Committee released a report from a three-year probe of the pharmaceutical industry that cited “outrageous prices” and “anticompetitive conduct.” The report made a strong case for the passing of the Build Back Better Act.
Editor's note: Story was updated to include comments from Eli Lilly.