Several Senate Democrats have joined their Republican colleagues in a request that Senate leaders remove the “Preserve Access to Affordable Generics Act” (S. 369) from a fiscal year 2011 appropriations bill (S. 3677). The October 21, 2010, letter, signed by Senators Arlen Specter (D-Pa.), Robert Casey (D-Pa.), Frank Lautenberg (D-N.J.), Tom Carper (D-Del.) and Kay Hagan (D-N.C.), contends that the inclusion of antitrust provisions “contradicts both the spirit and letter of the Senate rules.”

The antitrust provisions would make it more difficult for generic drug makers to settle lawsuits challenging the patents held by brand-name companies by agreeing to payments in exchange for delaying production and sale of cheaper generic products. Under S. 369, these agreements would be presumptively anticompetitive. Apparently, the Federal Trade Commission (FTC) claims these settlements are a form of collusion that keep affordable drugs off the market and, if banned, could save consumers $3.5 billion annually. The House reportedly passed a companion version in March as part of a supplemental appropriations package.

Republican Senators have also asked for the provisions to be dropped from the appropriations bill, which will likely be considered during the postelection lame-duck session. The September letter from Senators Jeff Sessions (R-Ala.), Tom Coburn (R-Okla.), John Cornyn (R-Texas), and John Thune (R-S.D.) complained that S. 369 would give excessive authority to the FTC over these settlements. See The Hill, October 26, 2010.