Last week I wrote that the cheaper-medicines law, its implementing rules and Executive Order (EO) 821 imposing price caps on certain medicines all violate the Constitutional provision on equal protection.

The selective application makes them discriminatory. The law is not applied universally and uniformly.

That’s because our legislators, in enacting the measure, failed to consider certain intricacies in medicine. They failed to see that not all medicines—even though they are for the same sickness—can be taken by all types of patients.

Thus, if the government really wants the law to benefit all, to have universal application, and to adhere to the constitutional right of citizens to equal protection, then it has to make amendments this early.

One amendment that should be considered is to have the price ceiling imposed on drugs by class per disease—not by formulation.

What does this mean?

If, for instance, the target disease is hypertension, then the price cap should be imposed on all classes of drugs used to treat hypertension, regardless of whether generic equivalents are available or whether—as the current rules say—the drug is the most widely prescribed.

So instead of putting the cap on amlodipine alone, which is just one drug in a class called calcium-channel blockers, the government should control the price of all calcium-channel blockers. Instead of putting on the list only irbesartan and telmisartan among so-called angotensin-II-receptor blockers, all sartans—losartan, eprosartan, valsartan and candesartan—should be included. For that matter, all diuretics, ACE inhibitors and beta-blockers should also be put under price regulation. And among the anticholesterol drugs that belong to a class called statins should be added simvastatin and rosuvastatin.

Unless this is done, the government could become the unwitting marketing and promotional arm for certain drugs manufactured by one or a few drug companies—and, therefore, indirectly encourage a monopoly. Or, in some
cases, the law could even drive the prices of certain drugs higher.

Let’s look at how prices of certain drugs stand now after the issuance of EO 821. Let’s take amlodipine. There are a number of brands now available after the patent of Pfizer’s Norvasc, the innovator drug, expired. Before EO 821, Norvasc was priced at about P45 for the 5- mg tablet and P70-plus for the 10-mg tablet. The EO imposed a ceiling of P22 for 5 mg and P38.50 for 10 mg.

On the other hand, even before EO 821 was issued, Unilab’s Amvasc (the generic equivalent of the innovator drug) was already being sold at P15.75 for 5 mg and P24 for 10 mg. 

So while the law benefited patients taking Norvasc, it has had no impact on those taking Amvasc—although one could argue that they don’t need to be benefited because they are already taking the lower-priced drug to begin with. But that is beside the point, because it could happen that they may end up paying more.

Even the Department of Health (DOH) admits that Filipinos—and even people in other countries—have a bias for the so-called innovator drugs, thinking that generic equivalents are not as effective. Even most doctors have that bias, reinforced by the strong marketing techniques employed by the company that owns the innovator drug. And it would take decades to change the mindset.

What could happen as a result of the imposition of the price ceiling?

One, instead of encouraging people to switch to the generic equivalent (Amvasc), those taking the generic equivalent may be encouraged—and with the prodding of their doctors, even—to take the innovator drug (Norvasc). Because the price gap has narrowed, doctors could advise their patients: “Sa konting diprensiya, Norvasc na.”

The law, in fact, reinforces the view that innovator drugs are better than their generic equivalents—and, therefore, encourages people to patronize them more.

That could lead Pfizer to practically monopolize  the amlodipine market—and with the blessings and help of the DOH. What it could not achieve through its Sulit card program, the government made possible through EO 821.

Or another scenario could ensue. Because a price cap has been imposed and it affects only Norvasc, what is to stop Unilab from raising its current price to the level of the price cap or closer to it? After all, its biggest encouragement for pegging its price at P15.75 and P24 was to dramatize the price difference and get patients started on its drug?

The same holds true for those taking different sartans. Irbesartan is now P24.35 for 150 mg and P40 for 300 mg, while Telmisartan is P25 for the equivalent 40 mg and P44.50 for 80 mg. But valsartan still sells for P51.50 for 80 mg and P75 for 160 mg, while candesartan sells for P46.25 for 8-mg equivalent and P69.25 for 16 mg.

These disparities put those who have been prescribed valsartan and candesartan at a disadvantage. The law does not grant them equal protection, and they might have no choice for reasons that are medical. 

We can take all medicines for all sorts of illnesses and draw the same scenario.

Clearly, the benefits do not cut across a population of patients with the same sickness, making the law selective and not universal in its application.

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