Formulary guidance and transparency from P&T to point of care

Radar On Market Access: Supreme Court's ACA Ruling May Upend Biosimilars Market

Posted by Angela Maas on Jan 7, 2021


As the Supreme Court decides on the fate of the Affordable Care Act (ACA), much of the focus has been on the people who would lose health insurance coverage and protections for pre-existing conditions if the law is overturned. Another ramification of such a ruling is that the biosimilars market could be completely upended, AIS Health reported.

The Biologics Price Competition and Innovation Act of 2009 (BPCIA) created the 351(k) biosimilar pathway. After more than one attempt to get a stand-alone bill to pass, lawmakers made it part of the ACA, and it became law on March 23, 2010.

Industry observers expect a decision on the case California v. Texas by June 2021, according to various sources. And opinions among industry experts vary on what the court will decide.

"I do think it is severable, but I am optimistic that that won't be needed,' says one industry expert who declines to be identified.

A second industry expert who declines to be identified points out that "there have been a fair amount of amicus briefings," which will make the court "think twice" about doing away with the BPCIA.

"I think the outcome of the Affordable Care Act case before the Supreme Court will be similarly mixed as a ruling like last time," says F. Randy Vogenberg, Ph.D., principal at the Institute for Integrated Healthcare. "I doubt they will rule the ACA is severable but will keep that door open….If the court strikes down the ACA entirely, biosimilars on the U.S. market or in the FDA approval pipeline would have to either be grandfathered in or face a regulatory wind-down."

If the ACA and thus the BPCIA are struck down, "personally, I think it's unlikely that medicines would be pulled off the market," says source No. 2. However, if the ACA is invalidated, the Supreme Court likely would include "guidance to regulators for carrying out their order."

"I would not expect FDA to de-approve anything already approved, but the pipeline might get more muddled," says the first source.

All that said, "[g]ood business practices would recommend that biosimilar manufacturers should be preparing for the possibility of the ACA, and thus the BPCIA, being struck down," recommends Vogenberg. "What should they be doing is scenario planning and being prepared for the best or worst and everything in between. If biosimilars are not available, this could impact payers that have them on formulary should a disruption occur in their marketing."

Subscribe to the MMIT blog for more pharma, provider, and payer perspectives on key topics that affect the healthcare network.

Subscribe for Weekly Perspectives

Topics: Industry Trends, Market Access, Payer