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Merck challenges Inflation Reduction Act

June 2023

Client(s) Merck & Co., Inc.

Jones Day filed a complaint on behalf of a pharmaceutical manufacturer, Merck & Co., Inc. ("Merck"), challenging the constitutionality of the Inflation Reduction Act ("IRA"). As Merck explained in the complaint, the Fifth Amendment requires the U.S. government pay "just compensation" if it takes property for public use. However, the IRA allows the government to obtain innovative medicines without providing fair value for them. Under the IRA, the government will take Merck's patented innovations by coercing the company to provide third parties with access at prices the government sets. In addition, the IRA creates the false impression that innovators like Merck are voluntary participants in its program by coercing them to sign an "agreement" conveying that the government-set prices are the "fair" result of a "negotiation." Merck argues that this compelled mirroring of the government's political message violates the First Amendment.

Merck & Co., Inc. v. Xavier Becerra, U.S. Secretary of Health & Human Services, et al., Civ. No. 1:23-01615 (CKK) (D.D.C)

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