A legislative committee on Thursday voted against a bill to assess hefty fines on generic drug manufacturers that jack up prices, rejecting the proposal after the industry made it clear it would sue Maine if it became law.

Democrats on the committee were deeply divided over the “excessive pricing” bill despite assurances from Maine’s attorney general that his office would defend it in court. While another measure to strengthen Maine’s two-year-old drug price monitoring program earned a committee endorsement, a majority of members weren’t swayed by Senate President Troy Jackson’s fiery comments that it is worth the legal risk to combat price gouging.

“If we can’t as a Legislature go forward with something to help our constituents, then I don’t want to be in this Legislature,” Jackson, an Allagash Democrat who sponsored one of the price-gouging bills, told members of the Health Coverage, Insurance and Financial Services Committee. “I don’t see any reason to be here and look other people in the face out there who are struggling everyday with the price of medications while I am getting government-sponsored medication and we are all getting government-sponsored medication.”

Maine is one of several states where lawmakers are contemplating taking on the powerful pharmaceutical companies over drug pricing. The industry has responded by successfully challenging laws that passed in other states and by waging intense, pre-emptive lobbying and public relations campaigns targeting lawmakers considering similar measures.

In recent days, the industry has purchased full-page advertisements in Maine newspapers as well as online ads warning that bills pending in the Legislature “could threaten access to medicines today and new treatments and cures in the future.”

Jackson’s bill and a similar price-gouging measure now face challenging odds in the full House and Senate in the final weeks of this year’s legislative session.

“I do believe that we need to challenge Big Pharma, but I want to do it carefully and with at least some sense that we have a possibility of success,” said Rep. Denise Tepler, D-Topsham. “And truthfully, I am deeply concerned that both of these bills are going to be found to be unconstitutional.”

Only four of the 13 committee members – all Democrats – voted to support Jackson’s bill, which would have allowed the Maine attorney general to seek a $500,000 penalty on companies accused of “excessive price increases” on generic or off-patent drugs. The bill defined “excessive” as a 15 percent increase year over year or 40 percent over three years when those prices exceed $30 for a 30-day supply.

All three voting Republicans opposed the bill outright, at least in part over the legal and constitutional concerns. But four other Democrats on the committee supported an alternative to the fines, instead directing the Maine Health Data Organization to gather and publicly disclose information on generic drug manufacturers that dramatically increase prices.

“To me, that’s a lever we can pull on,” said committee co-chair Sen. Heather Sanborn, D-Portland. “We can name and shame.”

Skyrocketing drug prices have been an issue nationwide for decades. And statistics collected by the Maine Health Data Organization under a 2019 law illustrate that consumers who rely on generic or so-called “off-patent” drugs are sometimes paying substantially more year over year.

In the first year of monitoring, the average price for more than 50 generic drugs rose by 109 percent. That translated into a $2.45-per-prescription jump on the low end to nearly $5,000 per prescription on the high end.

“We have one year’s worth of data on price increases,” said Karynlee Harrington, executive director of the Maine Health Data Organization. “In year two, we are going to collect a lot more data.”

The nonprofit National Academy for State Health Policy, which is working on drug pricing issues nationally, cited the 2017 example of the anti-parasite drug Daraprim jumping from $13.50 to $750 per pill. Examples in 2019 include a generic chemotherapy drug doubling from $105 to $210 per vial and a generic version of the antidepressant Prozac increasing 667 percent from $9 per bottle to $69 per bottle.

“Our constituents know the problem. They know they have been raked over the coals by this industry,” said Rep. Gina Melaragno, D-Auburn. “The public wants and needs us to act. And I think it is also time for Maine to signal to the federal government that, if you are not going to act, we will.”

Drug company representatives made clear they will fight any effort to impose penalties on them in Maine.

Ashlie Van Meter, representing drug makers through the Association for Accessible Medicines trade group, said generic manufacturers save consumers billions of dollars by keeping prices lower. While there are a few bad actors in the industry, Van Meter said, they have often been dealt with at the federal level.

Jackson’s bill was “still blatantly unconstitutional,” Van Meter said, so she pressed lawmakers on why they want to take a high legal risk for what she said was a low number of potential cases of excessive prices.

“We thought it would be disingenuous to try to fix a bill with the (price) triggers that we will still ultimately sue over,” Van Meter said.

The Association for Accessible Medicines challenged a similar but not identical “price gouging” law in Maryland, winning not only the case but also forcing the state to pay much of the group’s $1.7 million legal bills.

A federal appeals court deemed Maryland’s law unconstitutional in 2018, and the U.S. Supreme Court subsequently declined to consider hear Maryland’s arguments. The court found the law violated the Commerce Clause by regulating trade across state borders because pharmaceutical companies sell to wholesalers and distributors that do business in multiple states.

Jackson said his office worked closely with Attorney General Aaron Frey’s office to attempt to craft Maine’s bill in a way that could better avoid those constitutional challenges. But while addressing the committee Wednesday, assistant attorney general Chris Taub said he would still expect a “substantial challenge” from the drug industry, adding “I think at best we would have a 50-50 chance.”

Taub’s testimony appeared to rattle some Democrats and shore up Republican opposition. In response, Frey took the unusual step of requesting a follow-up audience with the committee on Thursday to stress that his office believed the proposals were legally defensible, even if he couldn’t guarantee an outcome in the inevitable court challenge filed by pharmaceutical companies.

“They are going to fight to make sure that they have that latitude” on setting prices, Frey said. “That being said, we are prepared to fight that. These challenges come all of the time.”

Republican lawmakers, who also opposed the bills to tweak the Maine Health Data Organization’s price-monitoring program, seized on the legal uncertainty. Rep. Mark Blier, R-Buxton, asked Jackson how he would justify to a constituent voting for a bill that could ultimately cost taxpayers $2 million in legal fees.

“It’s already been proven that this is not a winnable case,” Blier told Jackson. “Sometimes, just because you can doesn’t mean you should.”

After the committee vote, Jackson expressed frustration at what he views as hesitancy to take on “Big Pharma” and pledged intense fights on the House and Senate floors. He also dismissed some Democrats’ support for an alternative without financial penalties or pushing the bill until next year.

“I am not interested in screwing around and doing half-assed stuff that will make people in this building feel good,” Jackson said.

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