J&J Expands Its Legal Attack on 'Alternative Funding Programs' to Include a PBM

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Part of the challenge in writing about alternative funding programs is the agonizing complexity of the arrangements: patients have coverage for individual medicines stripped out of their policy, copay amounts being manipulated, third parties stepping in to seek charity care, manufacturers trying to keep pace by modifying their assistance programs, and on and on. 

It’s dizzying. 

Adding to the issue is the fact that most of the AFP vendors are obscure operators that are tied to, but generally considered outside of, the mainstream health system. Railing against SavOnSP is just not going to activate consumers in the same way that being mad at Exxon might. 

All of that is context for a clever legal move from J&J that was revealed on Friday: the company has expanded its slow-moving 2022 lawsuit against SavOnSP to include Express Scripts and its Accredo pharmacy. 

WSJ’s Pete Loftus has the scoop on the amended complaint, which was filed in October and quietly unsealed last month. 

Suddenly, the case is not about a confusing program run by an opaque company no one has heard of. It’s about Express Scripts and its corporate owner, Cigna. It’s about one of the nation’s largest companies manipulating the health insurance system to suck away dollars intended for patients. 

The protagonists and antagonists are now clearer to the average American. 

To be sure, I don’t expect that the legal maneuver is going to generate a lot of chatter about AFPs at holiday parties this year. But for those just getting exposed to the concept, the fact that J&J has now tied it clear back to Big Health is a step in the direction of (slightly) broader understanding. 

I’ve always considered the span from Thanksgiving to the New Year to be one big season of gratitude. I supposed it’s something about the “thanks” part of Turkey Day combined with the natural year-end retrospection. 

This year, I’ve been reflecting on how fortunate I have been to see this year a flowering of a health-policy-economics ecosystem of news and commentary and analysis. It wasn’t that long ago that Adam Fein was the only game in town, and though Adam is an indispensable part of the community, that’s a lot of ground for one person to cover. 

But 2024 has delivered a huge number of new (or newly amplified) voices. Bill Sarraille’s LinkedIn posts and -- now -- newsletter have become must-reads, and he has personally catalyzed the 340B discussion. 

The National Pharmaceutical Council has a wonderful weekly newsletter that has mastered the chocolate-in-my-peanut-butter trick of combining comprehensiveness with brevity. And Leerink’s Mel Whittingham has a new newsletter, too, that’s worth a click. (The form to subscribe is here.) 

LinkedIn has emerged as a platform for smart dialogue, and I credit the sophistication of the dialogue around the rollout of the first 10 “maximum fair prices” to the ability of LinkedIn to bring voices from across the dial together in a way that feels very circa-2013 Twitter. 

I mean, having Inma Hernandez, Ben Rome, Anna Kaltenboeck, Anirban Basu, Sarah Emond, and Kevin Pierce all sharing their work in close to real-time was absolutely amazing. I don’t think I ever got as smart as quickly as I did during the day after the MFPs dropped. 

All of this is built on existing substrate: thoughtful peer-reviewed papers, on-the-news white papers, consistent government data, and solid annual reports from groups that have earned our trust.  

But the dialogue that has emerged has been a huge help to me in sorting through a health system that is cartwheeling toward an ever-more-complex future. 

I’m hugely thankful for that conversation, and hugely excited to see what voices emerge in 2025.

Today is one of those day to quote the Princess Bride: “Let me explain. No, there is too much. Let me sum up.” 

So here are some especially quick Quick Turns:

• Congress is apparently still trying to figure out what to do with end-of-year spending bills, including a big health package that includes PBM reform. As of when I hit “send” on this newsletter, no one seems to know anything. It’s possible that will change by the time you read it, so I’m not linking. Just know this is a thing. Maybe. 

• HRSA has threatened Sanofi with nuclear-level punishments if the drugmaker moves ahead with its 340B rebate plan. I assume that the next step will be yet another lawsuit against HRSA, which would bring the tally to four. 

• Everyone is talking about the NYT op-ed from United’s Andrew Witty. It does not appear to be going over well. 

• One of the consequences of the IRA that ought to be beyond debate is that it disincentivizes certain kinds of investments in oncology. This Health Affairs Forefront piece details how that works. 

• Obesity rates are going down, a trend that appears to be linked to anti-obesity medicines. Again: these meds are having a powerful effect on the public health, and it's time for an adult conversation on how to pay for them. 

• Decent Fierce story on where the PBM narrative will go next year. Includes quotes from a lot of alternative PBM leaders. 

• House Republicans are investigating CVS over possible antitrust violations around the way that the company handles hubs.

• A study in The Lancet makes the case that the money spent on new drugs by the National Health Service in the UK would have been better invested in existing services. (FT has coverage.) As an American, my natural question is: Why can’t the UK have both new meds and better use of existing services?

Header image via Flickr user Paul Sableman.

Cost Curve is produced by Reid Strategic, a consultancy that helps companies and organizations in life sciences communicate more clearly and more loudly about issues of value, access, and pricing. We offer a range of services, from strategic planning to tactical execution, designed to shatter the complexity that hampers constructive conversations. 

To learn more about how Reid Strategic can help you, email Brian Reid at [email protected].