Becerra tells Warren he will do ‘thorough review’ of executive actions on drug prices

Secretary of Health and Human Services nominee Xavier Becerra told Sen. Elizabeth Warren (D-Mass.) that if confirmed he would conduct a “thorough review” of potential administration actions to lower drug prices, in response to a question about using a major executive power on the issue. 

Warren asked Becerra in a written question known as a “question for the record” about taking a drastic action, which does not require Congress, to break the patent on a drug and allow other companies to make it at a lower price.

“If I am fortunate to be confirmed, we will conduct a thorough review to identify and analyze the tools at our disposal to reduce the price of drugs and make treatments more affordable for the American people,” Becerra wrote in response, according to a document compiling the questions for the record obtained by The Hill.

“President Biden has been clear that reducing costs is a top priority for this Administration,” he wrote.

The answer is noncommittal, but it notably does not rule out using the authority. Republicans and the pharmaceutical industry are closely watching Becerra’s answers on the topic, given that he has previously supported using the power.  

The power in question is known as “march-in rights,” and could allow the government to break a patent in a bid to lower the price of a drug under authority granted by a 1980 law called the Bayh-Dole Act. 

Progressives have been pushing for the power to be used for years, but even the Obama administration rejected the idea in 2016, arguing that the power is intended to address supply shortages of a drug, not high prices. 

Becerra, though, has been an advocate for using the power, as recently as August, when, as California attorney general, he joined with Republican Louisiana Attorney General Jeff Landry to write a letter calling on the Trump administration to use the power to lower the price of the COVID-19 treatment remdesivir. 

Becerra defended that letter during his confirmation hearing last week under questioning from Sen. Pat Toomey (R-Pa.). 

“We were seeing our folks die and we knew that there was a drug that could keep them alive,” Becerra said. He did not address whether he would support using the power if confirmed as secretary of Health and Human Services. 

Becerra has been a lightning rod for GOP attacks on a range of issues, including abortion and his support for “Medicare for All.” He faces a vote in the Finance Committee on Wednesday. 

Toomey asked further questions of Becerra about the drug pricing move in his written questions after the hearing, to which Becerra was noncommittal. 

Bill Jaffee, a Toomey spokesman, called Becerra’s answers “inadequate.”

“Mr. Becerra is a lawyer, so it is not unreasonable to expect him to provide his legal justification for an unprecedented action to confiscate a private company’s right to its product in the midst of a global pandemic,” Jaffee said. “Leveraging march-in rights, in the way he was proposing, would have a chilling effect on all innovators and contradicts the original intent of federal law.” 

In a separate written question, Becerra was also asked if he would continue a Trump administration proposal to lower the price of some drugs in Medicare by tying the prices to those in other countries, a controversial move that drew criticism from many Republicans who worried it is a “price control.”

Becerra again said he would conduct a “thorough review.”