Florida Senate - 2012 SB 1412
By Senator Fasano
11-01199-12 20121412__
1 A bill to be entitled
2 An act relating to prescription drugs; providing a
3 short title; providing legislative findings and
4 intent; providing definitions; prohibiting a person
5 engaged in distribution of prescription drugs from
6 selling prescription drugs below wholesale cost to a
7 pharmacy provider at an outlet if such sale injures
8 competition; prohibiting a pharmacy benefits manager,
9 third-party payer, qualified plan, or Medicaid
10 provider from selling prescription drugs in an outlet
11 if such sale injures competition; prohibiting an
12 affiliate of a qualified plan from acting as a member
13 of a provider network for the qualified plan;
14 prohibiting a pharmacy benefits manager or an
15 affiliate from acting also as a member of a provider
16 network established or administered by the pharmacy
17 benefits manager; prohibiting a prescription drug
18 wholesaler or distributor from selling a prescription
19 drug to a retail pharmacy at a price that is below the
20 price charged by the wholesaler or distributor under
21 written contract of a like brand and quality of the
22 prescription drug under certain circumstances;
23 providing that an isolated, inadvertent incident
24 involving certain prohibited activities is not a
25 violation of the act; prohibiting a person engaged in
26 distributing prescription drugs from reselling or
27 knowingly receiving for resale any prescription drugs
28 at a price lower than the price at which the seller
29 contemporaneously sells prescription drugs of like
30 brand and quality to another retail outlet on the same
31 level of distribution, in the same class of trade, and
32 within the same relevant geographic market as the
33 purchaser; providing that a sale of prescription drugs
34 of like brand and quality at different prices to
35 persons at the same level of distribution is not an
36 unlawful discriminatory practice; prohibiting a
37 prescription drug wholesaler or distributor from
38 fixing or maintaining the retail price of prescription
39 drugs at a retail outlet supplied by the wholesaler or
40 distributor; providing a civil penalty that may be
41 assessed and recovered in a civil action brought by a
42 pharmacy provider; authorizing the court to award
43 attorney fees; providing for disqualification from the
44 Medicaid program for a violation of the act; providing
45 an effective date.
46
47 Be It Enacted by the Legislature of the State of Florida:
48
49 Section 1. (1) SHORT TITLE.—This act may be cited as the
50 “Prescription Drug Access and Pricing Protection Act.”
51 (2) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
52 that fair and healthy competition in the wholesaling and
53 distribution of prescription drugs and medical equipment
54 benefits patients in this state and that certain marketing and
55 distribution practices that impair such competition are contrary
56 to the public interest. Predatory practices and, under certain
57 conditions, discriminatory practices are unfair trade practices
58 and restraints that adversely affect access to quality and
59 affordable health care. It is the intent of the Legislature to
60 encourage competition and promote the general welfare of
61 residents of this state by prohibiting such unfair practices.
62 (3) DEFINITIONS.—In addition to the definitions contained
63 in s. 409.962, Florida Statutes, the following definitions apply
64 to this section:
65 (a) “Affiliate” means any person whose stock or ownership
66 interest is more than 50 percent owned by, or who, regardless of
67 stock ownership, is controlled by, or who, regardless of stock
68 ownership, is under common control with, any pharmacy benefits
69 manager, third-party payer, pharmacy provider, qualified plan,
70 or Medicaid provider.
71 (b) “Competition” means the vying for the opportunity to
72 sell at wholesale or to distribute prescription drug or medical
73 equipment by any two pharmacy providers in the same relevant
74 geographic market.
75 (4) PREDATORY PRACTICES UNLAWFUL; EXCEPTIONS.—
76 (a)1. A person engaged in distribution of prescription
77 drugs, as defined in s. 499.003(17), Florida Statutes, may not
78 sell prescription drugs in this state to any pharmacy provider
79 at an outlet below wholesale cost if the effect or intent is to
80 injure competition.
81 2. A pharmacy benefits manager, third-party payer,
82 qualified plan, or Medicaid provider in this state may not sell
83 prescription drugs in an outlet if the effect is to injure
84 competition.
85 3. An affiliate of a qualified plan may not also act as a
86 member of a provider network for the qualified plan.
87 4. A pharmacy benefits manager or affiliate of a pharmacy
88 benefits manager may not also act as a member of a provider
89 network established or administered by the pharmacy benefits
90 manager.
91 (b) Notwithstanding any other provision of law to the
92 contrary, a prescription drug wholesaler or distributor,
93 including any affiliate or agent thereof, may not sell a
94 prescription drug to a retail pharmacy at a price that is below
95 the price charged by that wholesaler or distributor under
96 written contract for a like brand and quality of the
97 prescription drug to the extent that the wholesaler or
98 distributor resells in the relevant geographic market where the
99 wholesaler’s or distributor’s wholesale price is in effect.
100 (c) An isolated, inadvertent incident involving activity
101 prohibited under paragraph (a) or paragraph (b) is not a
102 violation of this section.
103 (5) DISCRIMINATORY PRACTICES UNLAWFUL; EXCEPTIONS.—
104 (a) A person engaged in distributing prescription drugs in
105 this state may not:
106 1. Sell for resale prescription drugs at a price lower than
107 the price at which the seller contemporaneously sells
108 prescription drugs of like brand and quality to another retail
109 outlet on the same level of distribution, in the same class of
110 trade, and within the same relevant geographic market as the
111 purchaser, if the intent or effect is to injure competition.
112 2. Knowingly receive for resale prescription drugs at a
113 price lower than the price at which the seller from which the
114 prescription drugs is purchased or received contemporaneously
115 sells prescription drugs of like brand and quality to another
116 person on the same level of distribution, in the same class of
117 trade, and within the same relevant geographic market as the
118 purchaser, if the intent or effect is to injure competition.
119 (b) A sale of prescription drugs of like brand and quality
120 at different prices to persons at the same level of distribution
121 is not a violation of this section if the difference in price is
122 due to a difference in the cost of sale or delivery resulting
123 from differing methods or quantities in which the prescription
124 drugs are sold or delivered.
125 (6) UNLAWFUL PRACTICES.—A prescription drug wholesaler or
126 distributor may not fix or maintain the retail price of
127 prescription drugs at a retail outlet supplied by the wholesaler
128 or distributor.
129 (7) ENFORCEMENT; CIVIL PENALTIES; EXCLUSION FROM PROGRAM.—
130 (a) Any person who knowingly violates any provision of this
131 section is subject to a civil penalty not to exceed $10,000 per
132 violation. Each day that a violation occurs is considered a
133 separate violation, but a civil penalty may not exceed $250,000.
134 Any such person is also liable for attorney fees and is subject
135 to an action for injunctive relief.
136 (b) The civil penalty imposed under this section may be
137 assessed and recovered in a civil action brought by a pharmacy
138 provider in a court of competent jurisdiction. If the pharmacy
139 provider prevails in the civil action, the court may award
140 reasonable attorney fees as it deems appropriate.
141 (c) Any Medicaid provider or qualified plan that violates
142 any provision of this section is subject to disqualification
143 from participating in the Medicaid program.
144 Section 2. This act shall take effect July 1, 2012.