2001 - 2002 LEGISLATURE
February 18, 2002 - Introduced by Representatives Krusick, Carpenter, Coggs,
Jeskewitz, La Fave, J. Lehman, M. Lehman, Meyerhofer, Miller,
Morris-Tatum, Musser, Plale, Powers, Ryba, Seratti, Sherman, Sinicki,
Staskunas, Steinbrink, Stone, Travis, Urban, Wasserman and Williams,
cosponsored by Senators Grobschmidt, Burke and
Hansen, by request of
Coalition of Working Aging Groups, Wisconsin Citizen Action and Allied
Council of Senior Citizens of Wisconsin. Referred to Committee on Health.
1An Act to renumber and amend
100.31 (1) (a) and 100.31 (1) (b); to amend
100.31 (title), 100.31 (1) (c), 100.31 (2), 100.31 (3), 100.31 (4) and 450.10 (1) (a) 3
2.; and to create
100.31 (1) (ae), 100.31 (1) (as), 100.31 (2g) and 100.31 (2r) of 4
the statutes; relating to: prescription drug prices, granting rule-making
5authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill imposes a limit on the price of certain prescription drugs. Under the
bill, if a person has an insurance policy that requires him or her to pay a portion of
the price of a prescription drug, the dispenser of the drug may not require the person
to pay an amount for the drug that exceeds that portion, or the average price that the
dispenser charges to consumers who do not have insurance coverage of prescription
drugs, whichever is less. The bill defines a "dispenser" as a person who delivers a
prescription drug to the ultimate user for outpatient use, including an insurer that
issues certain types of managed health care plans or a hospital. The bill's prohibition
does not apply to a dispenser who delivers prescription drugs exclusively to persons
who have insurance coverage of prescription drugs. A dispenser who violates the
bill's prohibition may be subject to a forfeiture of between $100 and $10,000 per
violation. The department of agriculture, trade and consumer protection (DATCP)
and district attorneys are authorized to bring actions for forfeitures.
The bill also changes a prohibition under current law against price
discrimination that applies to persons who trade in prescription drugs for resale.
Under current law, the prohibition applies to trades with persons who engage
primarily in selling prescription drugs directly to consumers. Under the bill, the
prohibition applies to trades with dispensers, as defined above.
Finally, the bill provides that the prohibition against price discrimination
described above applies to drugs included in the most current version of either of the
following: 1) the "Approved Drug Products with Therapeutic Equivalence
Evaluations," which is published by the federal food and drug administration (FDA);
or 2) another publication specified in rules promulgated by DATCP that identifies
drug products approved on the basis of safety and effectiveness by the FDA under
the federal Food, Drug, and Cosmetic Act. Current law refers only to the list of
therapeutically equivalent drugs published by the FDA.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB821, s. 1
100.31 (title) of the statutes is amended to read:
(title) Unfair discrimination in Prescription drug pricing.
AB821, s. 2
100.31 (1) (a) of the statutes is renumbered 100.31 (1) (bm) and 4
amended to read:
(bm) "Drug" "Prescription drug"
means any substance subject to 21
AB821, s. 3
100.31 (1) (ae) of the statutes is created to read:
(ae) "Consumer" means a person for whom a prescription drug is 9
AB821, s. 4
100.31 (1) (as) of the statutes is created to read:
(as) "Federal drug list" means the "Approved Drug Products with 12
Therapeutic Equivalence Evaluations" published by the federal food and drug 13
administration, or other publication specified in rules promulgated by the 14
department under sub. (2r).
AB821, s. 5
100.31 (1) (b) of the statutes is renumbered 100.31 (1) (am) and 2
amended to read:
(am) "Purchaser" "
means any person who engages 4primarily
in selling dispensing, as defined in s. 450.01 (7), prescription
drugs directly 5
to consumers for outpatient use. "Dispenser" includes a hospital that directly or
6indirectly bills patients for prescription drugs, or an insurer that issues a defined
7network plan, as defined in s. 609.01 (1b), and that provides prescription drugs or
8prescription drug coverage to the enrollees of the plan
AB821, s. 6
100.31 (1) (c) of the statutes is amended to read:
(c) "Seller" means any person who trades in prescription
drugs for 11
resale to purchasers dispensers
in this state.
AB821, s. 7
100.31 (2) of the statutes is amended to read:
100.31 (2) Price discrimination prohibited.
Every seller shall offer 14prescription
drugs from the most current federal drug
list of therapeutically
15equivalent drugs published by the federal food and drug administration
to every 16purchaser dispenser
in this state, with all rights and privileges offered or accorded 17
by the seller to the most favored purchaser dispenser
, including purchase prices for 18
similar volume purchases, rebates, free merchandise, samples,
and similar trade 19
concessions. Nothing in this subsection prohibits the giving of a discount for volume 20
AB821, s. 8
100.31 (2g) of the statutes is created to read:
100.31 (2g) Price limitation.
If a consumer has insurance coverage for 23
prescription drugs and is required to pay a portion of the price of a prescription drug 24
covered under the consumer's insurance policy, a dispenser who sells the 25
prescription drug to the consumer may not require the consumer to pay an amount
for the prescription drug that is more than the portion that the consumer is required 2
to pay under the policy, or the average price that the dispenser charges for the 3
prescription drug to consumers who do not have insurance coverage of prescription 4
drugs, whichever is less. This subsection does not apply to a dispenser who dispenses 5
prescription drugs exclusively to consumers who have insurance coverage of 6
AB821, s. 9
100.31 (2r) of the statutes is created to read:
100.31 (2r) Rules.
The department may promulgate rules that, for purposes 9
of sub. (1) (as), specify a publication that identifies drug products approved on the 10
basis of safety and effectiveness by the federal food and drug administration under 11
the federal Food, Drug, and Cosmetic Act.
AB821, s. 10
100.31 (3) of the statutes is amended to read:
100.31 (3) Treble damages.
Any purchaser dispenser
damaged by a
of this section sub. (2)
may bring an action against the seller to recover treble 15
damages sustained by reason of such violation.
AB821, s. 11
100.31 (4) of the statutes is amended to read:
100.31 (4) Penalties.
For any violation of this section, the department or a 18
district attorney may commence an action on behalf of the state to recover a forfeiture 19
of not less than $100 nor more than $10,000 for each offense. Each delivery of a 20prescription
drug sold to a purchaser
dispenser or consumer
at a price in violation 21
of this section and each separate day in violation of an injunction issued under this 22
section is a separate offense.
AB821, s. 12
450.10 (1) (a) 2. of the statutes is amended to read:
(a) 2. Violating this chapter, s. 100.31 (2g),
or, subject to s. 961.38 (4r), 2
ch. 961 or any federal or state statute or rule which substantially relates to the 3
practice of the licensee.
(1) If a dispenser, as defined in section 100.31 (1) (am) of the statutes, as 6
affected by this act, is subject to a contract that is in effect on the effective date of this 7
subsection and that contains provisions regarding prices of prescription drugs, as 8
defined in section 100.31 (1) (bm) of the statutes, as affected by this act, that are 9
inconsistent with section 100.31 (2g) of the statutes, as created by this act, then, 10
notwithstanding section 100.31 (2g) of the statutes, as created by this act, the 11
dispenser may perform its obligations, and exercise its rights, under that contract 12
until the contract expires, or is extended, modified, or renewed, whichever occurs 13
This act takes effect on the first day of the 3rd month beginning after 16