0001| SENATE BILL 555 | 0002| 42ND LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, | 0003| 1996 | 0004| INTRODUCED BY | 0005| TIMOTHY Z. JENNINGS | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO HEALTH; ENACTING THE PRESCRIPTION DRUG FAIR PRICING | 0013| ACT; PROVIDING FOR EQUAL ACCESS TO PRESCRIPTION DRUG PRICES. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. SHORT TITLE.--This act may be cited as the | 0017| "Prescription Drug Fair Pricing Act". | 0018| Section 2. DEFINITIONS.--As used in the Prescription Drug | 0019| Fair Pricing Act: | 0020| A. "charitable health care provider" means a health | 0021| care provider that is exempt from federal taxation under Section | 0022| 501(c)(3) of the Internal Revenue Code, as amended; | 0023| B. "covered transaction" means any sale of a | 0024| prescription drug to a purchaser doing business in this state in | 0025| which a manufacturer, whether by direct sale to a purchaser or | 0001| through a contractual arrangement implemented by one or more | 0002| wholesalers, negotiates, establishes, determines or otherwise | 0003| controls the price, terms or conditions of sale, including | 0004| rebates, free merchandise, samples and similar trade | 0005| concessions; | 0006| C. "drug" or "prescription drug" means a drug or | 0007| device, which may be dispensed only upon a prescription as those | 0008| terms are defined in the New Mexico Drug, Device and Cosmetic | 0009| Act; | 0010| D. "manufacturer" or "seller" means a person, other | 0011| than a wholesaler, that trades in prescription drugs for resale, | 0012| either directly or through a wholesaler, to purchasers in this | 0013| state; | 0014| E. "purchaser" means a person doing business in this | 0015| state that engages in selling or dispensing prescription drugs | 0016| directly to consumers but does not include: | 0017| (1) the federal department of veterans' | 0018| affairs, the department of defense, entities covered under | 0019| Section 256b(a)(4) of the Public Service Health Act, as amended, | 0020| and any other federal, state or local government program that | 0021| directly purchases or procures prescription drugs; | 0022| (2) hospitals that purchase prescription drugs | 0023| for their inpatients' own use, but not for resale or outpatient | 0024| use; and | 0025| (3) charitable health care providers, except | 0001| those that offer, issue or administer a health insurance policy | 0002| or an employee benefit plan; and | 0003| F. "wholesaler" means a person other than a | 0004| manufacturer that sells prescription drugs to purchasers. | 0005| Section 3. PRESCRIPTION DRUG PRICE DISCRIMINATION | 0006| PROHIBITED.-- | 0007| A. A seller that offers prescription drugs in a | 0008| covered transaction to a purchaser shall, during the same or | 0009| substantially the same time period, offer the same or | 0010| substantially the same terms and conditions for the drugs in a | 0011| covered transaction to any other purchaser. This provision | 0012| applies to: | 0013| (1) transactions in which a manufacturer sells | 0014| to a purchaser through a contractual arrangement with one or | 0015| more wholesalers; | 0016| (2) purchase prices for similar volume | 0017| purchases; and | 0018| (3) rebates, free merchandise, samples and | 0019| similar trade concessions. | 0020| B. The provisions in Subsection A of this section do | 0021| not prohibit a seller from offering or providing a discount, | 0022| provided the discount is made available to all purchasers on | 0023| equal terms. This includes allowing discounts for: | 0024| (1) economies or efficiencies based on volume | 0025| purchases; | 0001| (2) opportunities available to purchasers on | 0002| equal terms through market share movement agreements; | 0003| (3) prompt payment; and | 0004| (4) prompt delivery. | 0005| C. No seller shall provide discounts to any | 0006| purchaser based on the class of trade to which the purchaser | 0007| belongs. | 0008| D. The provisions of this section apply to any | 0009| covered transaction for the purchase of prescription drugs | 0010| delivered to a purchaser or purchaser's facility for sale to | 0011| consumers in the state. | 0012| E. Nothing in this section is intended to require a | 0013| single price for prescription drugs or to eliminate existing | 0014| discount programs that conform with the provisions of this | 0015| section. | 0016| Section 4. ENFORCEMENT.-- | 0017| A. A seller that violates a provision of the | 0018| Prescription Drug Fair Pricing Act shall pay a civil penalty of | 0019| not less than one thousand dollars ($1,000) and not more than | 0020| fifty thousand dollars ($50,000) for each violation. The | 0021| attorney general shall bring an action in district court to | 0022| enforce the provisions of the Prescription Drug Fair Pricing | 0023| Act. | 0024| B. Any purchaser may bring a civil action against | 0025| any seller to recover damages suffered as a result of a | 0001| violation of a provision of the Prescription Drug Fair Pricing | 0002| Act. Proof of price discrimination shall constitute prima facie | 0003| evidence that damages have been sustained. When damages are | 0004| proved, the court shall award the purchaser three times the | 0005| actual damages caused by the seller's violation of the | 0006| Prescription Drug Fair Pricing Act. | 0007|  |