,i #aafth ,,congress #ast ,session ,h4 ,r4 #eacc ,,in ,,the ,,house ,,of ,,representatives ,november #ah1 #bjai,mr4 ,cicilline 7for himself1 ,mr4 ,collins of ,georgia1 ,mr4 ,nadler1 and ,mr4 ,sensenbrenner7 introduced the following bill2 which was referred to the ,committee on the ,judiciary ,a ,,bill ,to amend the ,federal ,trade ,commission ,act to prohibit anticompetitive behaviors by drug product manufacturers1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,affordable ,prescriptions for ,patients ,through ,promoting ,competition ,act of #bjai4 #b4 ,product hopping 7a7 ,in general ,the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 is amended by inserting after section #bf 7#ae ,u4,s4,c4 #eg;c-#b7 the following3 #bg4 ,product hopping 7a7 ,definitions ,in this section3 7#a7 ,abbreviated new drug application ,the term abbreviated new drug application means an application under subsection 7b77#b7 or 7j7 of section #eje of the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cee74 7#b7 ,biosimilar biological product ,the term biosimilar biological product means a biological product licensed under section #cea7k7 of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #bfb7k774 7#c7 ,biosimilar biological product license application ,the term biosimilar biological product license application means an application submitted under section #cea7k7 of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #bfb7k774 7#d7 ,follow-on product ,the term follow-on product-- 7,a7 means a drug approved through an application or supplement to an application submitted under section #eje7;b7 of the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cee7;c77 or a biological product licensed through an application or supplement to an application submitted under section #cea7;a7 of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #bfb7;a77 for a change1 modification1 or reformulation to the same manufacturer's previously approved drug or biological product that treats the same or a related indication2 7,b7 excludes such an application or supplement to an application for a change1 modification1 or reformulation of a drug or biological product that is requested by the ,secretary or necessary to comply with law1 including sections #eje;,a and #eje;,b of the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cee;a1 #cee;c72 7,c7 excludes such an application or supplement to an application submitted under section #eje7;b7 of the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cee7;c77 that has been granted ,new ,chemical ,entity exclusivity 7#ba ,u4,s4,c4 #cee7;c77#c77;,e77ii77 by the ,food and ,drug ,administration2 and 7,d7 excludes such an application or supplement submitted under section #cea7;a7 of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #bfb7;a77 that has been granted exclusivity pursuant to section #cea7k77#g7 of such ,act 7#db ,u4,s4,c4 #bfb7k77#g774 7#e7 ,commission ,the term ,commission means the ,federal ,trade ,commission 7#f7 ,disadvantage ,the term disadvantage means to impede the listed drug or reference product's ability to compete on the merits with the follow-on product4 ,this term excludes actions that consist solely of-- 7,a7 truthful1 non-misleading promotional marketing2 or 7,b7 ceasing promotional marketing for the listed drug or reference product4 7#g7 ,generic drug ,the term generic drug means a drug approved under an application submitted under subsection 7b77#b7 or 7j7 of section #eje of the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cee74 7#h7 ,listed drug ,the term listed drug means a drug listed under section #eje7;j77#g7 of the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cee7;j77#g774 7#i7 ,manufacturer ,the term manufacturer means the holder1 licensee1 or assignee of-- 7,a7 an approved application for a drug under section #eje7;c7 of the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cee7;c772 or 7,b7 a biological product license under section #cea7;a7 of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #bfb7;a774 7#aj7 ,reference product ,the term reference product has the meaning given the term in section #cea7;i7 of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #bfb7;i774 7#aa7 ,ultimate parent entity ,the term ultimate parent entity has the meaning given the term in section #hja4a of title #af1 ,code of ,federal ,regulations1 or any successor regulation4 7b7 ,prohibition on product hopping 7#a7 ,prima facie ,except as provided in paragraph 7#b71 a manufacturer of a reference product or listed drug shall be considered to have engaged in an unfair method of competition in or affecting commerce in violation of section #e7;a7 of the ,federal ,trade ,commission ,act if complaint counsel or the ,commission demonstrates by a preponderance of the evidence in a proceeding initiated by the ,commission under subsection 7c77#a71 or in a suit brought under subparagraph 7,b7 or 7,c7 of subsection 7c77#a71 that1 during the period beginning on the date on which the manufacturer of the reference product or listed drug first receives notice that an applicant has submitted to the ,commissioner of ,food and ,drugs an abbreviated new drug application or biosimilar biological product license application and ending on the date that is the earlier of #ahj days after the date on which that generic drug or biosimilar biological product or another generic drug or biosimilar biological product referencing the listed drug or reference product is first marketed or #c years after the date on which the follow-on product is first marketed1 the manufacturer engaged in either of the following actions3 7,a7 ,the manufacturer engaged in a hard switch1 which shall be established by demonstrating that the manufacturer engaged in either of the actions described in clause 7i7 or 7ii73 7i7 ,upon the request of the manufacturer of the listed drug or reference product1 the ,commissioner of ,food and ,drugs withdrew the approval of the application for the listed drug or reference product or placed the listed drug or reference product on the discontinued products list2 and 7,i7 the manufacturer marketed or sold a follow-on product4 7ii7 7,i7 ,the manufacturer of the listed drug or reference product-- 7aa7 withdrew1 discontinued the manufacture of1 or withdrew the application with respect to1 or announced withdrawal of1 discontinuance of the manufacture of1 or withdrawal of the application with respect to1 the drug or reference product in a manner that impedes competition from a generic drug or a biosimilar biological product1 as established by objective circumstances1 unless such actions were taken by the manufacturer pursuant to a request of the ,commissioner of ,food and ,drugs2 or 7bb7 destroyed the inventory of the listed drug or reference product in a manner that impedes competition from a generic drug or a biosimilar biological product1 which may be established by objective circumstances2 and 7,,ii7 marketed or sold a follow-on product4 7,b7 ,the manufacturer engaged in a soft switch1 which shall be established by demonstrating that the manufacturer engaged in both of the following actions3 7i7 ,the manufacturer took one or more actions with respect to the listed drug or reference product other than those described in subparagraph 7,a7 that unfairly disadvantage the listed drug or reference product relative to the follow-on product described in clause 7ii7 in a manner that impedes competition from either a generic drug or a biosimilar biological product1 which may be established by objective circumstances4 7ii7 ,the manufacturer marketed or sold a follow-on product4 7#b7 ,justification 7,a7 ,in general ,subject to paragraph 7#c71 the actions described in paragraph 7#a7 by a manufacturer of a listed drug or reference product shall not be considered to be an unfair method of competition in or affecting commerce if-- 7i7 the manufacturer demonstrates to the ,commission or a district court of the ,united ,states1 as applicable1 by a preponderance of the evidence in a proceeding initiated by the ,commission under subsection 7c77#a71 or in a suit brought under subparagraph 7,b7 or 7,c7 of subsection 7c77#a71 that-- 7,i7 the manufacturer would have taken the actions regardless of whether a generic drug that references the listed drug or biosimilar biological product that references the reference product had already entered the market2 and 7,,ii7 7aa7 with respect to a hard switch under paragraph 7#a77;,a77i71 the manufacturer took the action for reasons relating to the safety risk to patients of the listed drug or reference product2 7bb7 with respect to an action described in item 7aa7 or 7bb7 of paragraph 7#a77;,a77ii77,i71 there is a supply disruption that-- 7,,aa7 is outside of the control of the manufacturer2 7,,bb7 prevents the production or distribution of the applicable listed drug or reference product2 and 7,,cc7 cannot be remedied by reasonable efforts2 or 7cc7 with respect to a soft switch under paragraph 7#a77;,b71 the manufacturer had legitimate pro-competitive reasons1 apart from the financial effects of reduced competition1 to take the action4 7,b7 ,rule of construction ,nothing in subparagraph 7,a7 may be construed to limit the information that the ,commission may otherwise obtain in any proceeding or action instituted with respect to a violation of this section4 7#c7 ,response ,with respect to a justification offered by a manufacturer under paragraph 7#b71 complaint counsel or the ,commission1 as applicable1 will prevail in its case if it establishes by a preponderance of the evidence that-- 7,a7 the conduct described in subsection 7b77#a7 is not reasonably necessary to address or achieve the justifications claimed under paragraph 7#b77;,a77,,ii77aa-cc71 or such justifications could be reasonably addressed or achieved through less anticompetitive means2 or 7,b7 the pro-competitive benefits from the conduct described in subparagraph 7,a7 or 7,b7 of paragraph 7#a71 as applicable1 do not outweigh any anticompetitive effects of the conduct1 even in consideration of the justification so offered4 7c7 ,enforcement 7#a7 ,enforcement by the ,federal ,trade ,commission ,except as provided in paragraph 7#b71 the ,commission shall enforce this section in the same manner1 by the same means1 and with the same jurisdiction1 powers1 duties1 and remedies provided for by all applicable terms and provisions of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de et seq474 7#b7 ,judicial review 7,a7 ,in general ,notwithstanding any provision of section #e of the ,federal ,trade ,commission ,act1 any manufacturer that is subject to a final order of the ,commission that is issued in a proceeding initiated under paragraph 7#a7 may1 not later than #cj days after the date on which the ,commission issues the order1 petition for review of the order in-- 7i7 the ,united ,states ,court of ,appeals for the ,district of ,columbia ,circuit2 or 7ii7 the court of appeals of the ,united ,states for the circuit in which the ultimate parent entity of the manufacturer is incorporated4 7,b7 ,treatment of findings ,in a review of an order issued by the ,commission conducted by a court of appeals of the ,united ,states under subparagraph 7,a71 the factual findings of the ,commission shall be conclusive if those facts are supported by the evidence4 7#c7 ,rules of construction ,nothing in this subsection may be construed as-- 7,a7 requiring the ,commission to bring a suit seeking a temporary injunction under paragraph 7#a77;,b7 before bringing a suit seeking a permanent injunction under paragraph 7#a77;,c72 or 7,b7 affecting any other authority of the ,commission under this ,act to seek relief or obtain a remedy with respect to a violation of this ,act4 4 7b7 ,applicability ,section #bg of the ,federal ,trade ,commission ,act1 as added by subsection 7a71 shall apply with respect to any-- 7#a7 conduct that occurs on or after the date of enactment of this ,act2 and 7#b7 action or proceeding that is commenced on or after the date of enactment of this ,act4 7c7 ,antitrust laws ,nothing in this section1 or the amendments made by this section1 shall modify1 impair1 limit1 or supersede the applicability of the antitrust laws as defined in subsection 7a7 of the first section of the ,clayton ,act 7#ae ,u4,s4,c4 #ab7;a771 and of section #e of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de7 to the extent that it applies to unfair methods of competition4 7d7 ,rulemaking ,the ,federal ,trade ,commission may issue rules under section #eec of title #e1 ,united ,states ,code1 to carry out section #bg of the ,federal ,trade ,commission ,act1 as added by subsection 7a71 including by defining any terms used in such section #bg 7other than terms that are defined in subsection 7a7 of such section #bg74