Senate Members Object to Pay-for-Delay Ban's Inclusion in the 2011 Appropriations Bill: Pay-for-Delay iis Good for Big Pharma, Good for the Generics Industry, but Bad for Patients and the Health Care System 

Even though generic drugs are an important tool for patients to afford their medicines, and for state prescription assistance programs to balance their budgets, both Republicans and Democrats in the Senate express continued opposition to legislative restrictions on the pharmaceutical patent settlements.  While these settlements are vehemently opposed by the FTC and delay access to affordable generics, federal legislators face strong pressure from home-state drug manufacturers to protect the practice. The inclusion of the "Preserve Access to Affordable Generics Act" in the 2011 Appropriations Bill has prompted members of both parties to petition Senate Majority Leader Harry Reid for its removal. That Act would make compensated patent settlements presumptively anticompetitive with a requirement of "clear and convincing evidence that the precompetitive benefits of the agreement outweigh the anticompetitive effects of the agreement."

Five Democrats submitted a letter to the Majority Leader on October 21, expressing their opposition, citing "substantive concerns with the content of these provisions," and claiming that the inclusion "contradicts both the spirit and letter of the Senate rules." It should come as no surprise that all five come from states that contain a large pharmaceutical industry presence. The rhetoric from the Republican camp has been equally biting. A similar letter from September 17 signed by four senators expressed "vigorous objection" to its inclusion on the argument that the Act grants excessive power to the FTC and would "do serious violence" to processes under the Hatch-Waxman Act. Most likely in reference to the Watson Pharmaceutical controversy, the Republican senators say that past events already show that the FTC cannot wield such power "in a responsible or economically rational manner."

FTC commissioner Jon Leibowitz sounded neither surprised nor demoralized in a recent interview with Ed Silverman at Pharmalot about the response. His attitude towards the legislative opposition is simply that "[w]e're going to get this done ... When their might is combined - the political capital and the pr machines - (the industry) has an awfully big megaphone." He did express continued optimism in chances that the Supreme Court will decide to hear this issue, even while declining to make specific timeline predictions beyond "we're closer than we were a year ago."