The key worry for many directed to take prescriptions by their doctor can be the cost. In Oregon, there may be some relief coming from the Legislature. Maybe.

A state board, the Oregon Drug Prescription Affordability Board, may recommend the Legislature set an upper price limit on some prescription drugs. It would come with a tangle of complications: affordability and innovation, legality and morality.

Can drugs be more affordable and there still be great leaps forward in new and better drugs?

Is it fair and legal that state government dictate what prices companies can charge for drugs? What if patients need them to live better lives?

Oregon may become the fifth state where a board may be given the power to set an upper price limit for some drugs. Colorado, Maryland, Minnesota and Washington state have so-called upper price limit or UPL powers, though Maryland’s authority is more limited. None of them have set them.

It can cost a patient with multiple sclerosis tens of thousands of dollars a year to afford the disease-modifying therapies to help keep the disease under control. A 2022 study said the cost was some $35,154 per person for disease-modifying therapies. If the government in Oregon tried to set prices would they truly end up being lower? What’s happened in Colorado may give some insight into what might happen in Oregon.

Colorado’s laws for setting upper payment limits require the state to consider the cost of the drug, how it is used, insurance coverage for the drug and information from people who use it. One of the drugs that Colorado has declared is unaffordable is Enbrel, an arthritis drug. It can help people with moderate to severe plaque psoriasis. For the first three months, the recommended dose is 50 milligrams twice weekly. Then the dose switches to 50 milligrams once a week. The list price is $1,905 per 50 mg dose. Most patients do not pay the full cost because of health insurance and help from the manufacturer. Still the cost can add up.

Colorado now faces a lawsuit from drug companies. The companies argue that the Colorado law interferes with federal patent law. They argue the manufacturer did not receive due process to present their case. They argue there is a federal preemption of the state’s ability to set prices, through programs such as Medicare. And they argue that the commerce clause of the Constitution prevents a state from overreaching its legal authority outside of its borders.

It’s not clear if any or all of those arguments will stand up in court. Oregon would likely face a similar fight if it started setting upper price limits. That doesn’t mean Oregon should do nothing. It’s just that it might lead to lawsuits.

There may be other repercussions. Drug companies may pull drugs. Profit margins for struggling pharmacies may narrow. It may lower rebates for the drugs that consumers had been receiving, resulting in consumers not really paying less.

Setting up an upper price limit also would be tricky, because there are so many unknown variables about the costs of development and production of drugs. Should it be set using the price of a drug at launch and then limit price increases to inflation? Should it be set according to what Medicaid pays for it? There are many other possibilities.

It looks like the state board is going to make a recommendation for the Oregon Legislature to move ahead. Should it? Tell your legislator what you think.