Senators threaten to subpoena CEO testimony while J&J, Merck claim retaliation amid IRA legal fight

In its efforts to probe high U.S. drug prices, the Senate health committee has already heard from the heads of Moderna, Eli Lilly, Novo Nordisk and Sanofi. Next, the lawmakers might try an extremely uncommon step in order to hear from the CEOs of Johnson & Johnson and Merck.

After the Senate Committee on Health, Education, Labor, and Pensions (HELP)'s chairman Sen. Bernie Sanders (I-Vt.) summoned the top execs of Bristol Myers Squibb, Merck & Co. and Johnson & Johnson to testify at an upcoming pricing hearing, only one of them has agreed to participate. 

While BMS' Chris Boerner agreed to appear at the hearing so long as he's not alone, the J&J and Merck leaders haven't shown a willingness to participate, according to a Thursday release from Sen. Sanders.

With that in mind, the commitee will vote on January 31 whether to subpoena the two holdout CEOs, the release said.

J&J and Merck's snub is “absolutely unacceptable,” Sen. Sanders said in the release. “It is time to hold these pharmaceutical companies accountable for charging the American people the highest prices in the world for the medicine they need.”

The HELP committee issued its first and so far only subpoenas in 1981, requesting records in an investigation into the Labor Department. It has never ordered a public figure to be subpoenad.

Meanwhile, Merck and J&J remain suspicious of the hearing’s true intentions.

Last summer, many large pharmaceutical companies filed lawsuits questioning the constitutionality of the Inflation Reduction Act (IRA) price-negotiation measures. Merck sparked the flame with the first lawsuit, while companies including J&J and BMS followed suit with their own litigation.

The three companies called to testify in the recent hearing are the only U.S.-based companies with IRA-related litigation pending, lawyers for Merck and J&J pointed out in separate letters to Sen. Sanders on Jan. 12.

“The hearing and invitation to testify appear intended to single out and punish the companies for their decision to challenge the 'Drug Price Negotiation Program' in court, and to dissuade other companies from similarly seeking a judicial resolution of the important constitutional questions that have been raised about the program’s legality,” Merck’s general counsel and executive vice president, Jennifer Zachary, wrote in the company’s letter.

Both drugmakers said they offered executives who could better speak to U.S. pricing and commercialization issues than their CEOs. The committee’s rejection of the proposal only raised the companies’ concerns, with Merck's Zachary accusing the senators of seeking a “broad-ranging public spectacle, with witnesses you can question on pending litigation you disagree with.”

A J&J spokesperson said the company has "deep respect" for the committee's work, but the drugmaker has voiced "concerns with the hearing as it is currently planned."

"Johnson & Johnson continues to work alongside regulators, policymakers and other stakeholders to support affordability and access to prescription medicines and to promote an environment that encourages innovation that will lead to the next generation of medicines," the company's spokesperson added.

In a different industry, Starbucks' former CEO Howard Schultz faced a similar subpoena threat last year before eventually agreeing to testify in front of the HELP committee.