Additional Thoughts — On Civil Investigative Demands, Out Of Manhattan AUSA’s Office: Who Really Is The Target?

To follow up on my earlier report about Merck and J&J’s disclosures (in the quarterly SEC filings of each) regarding civil investigative requests, this week — it occurs to me that both of the drugs which Merck named as being “asked about” by the able US Attorneys in New York, are not on the approved formulary lists, of any major pharmacy benefit manager, or PBM, in the US.

If the very-able Manhattan US Attorneys’ line of thought is that Merck somehow paid something improper, to gain favored access/placement on the major PBMs’ approved formulary lists, then the request likely would/should have asked about Merck’s formulary-favored drugs.

If on the other hand, the concern of the US Attorney has more to do with the power that PBMs increasingly wield, in making formulary approval decisions — I would think that the US Attorneys’ offices would want to see how certain drugs end up getting excluded from that coveted status, and how that might impact both the pricing of other (formulary favored) drugs in the same indication, and overall anti-competitive manuevering, in these US marketplaces. So — I now reiterate my guess that this may be more about a look at PBMs — than a look at R&D driven pharmaceutical manufacturers. [CVS and the like ought to be taking notes, here.]

As ever, to be fair, J&J did not indicate which particular drugs its DoJ request asked about (so there is no way to know if J&J’s request fits with my hypothesis). And, in any event, I think (if memory serves) Merck has divested at least the Levitra rights, to Bayer (in the Consumer Health sale), post 2014. So again, this is all just idle speculation on my part. But it might well pan out.

Now, onward on a perfectly sunny Friday morning. . . smiling, and awaiting a great weekened. . .

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