The NAM filed an amicus brief in support of PhRMA's challenge to a Minnesota law that requires some PhRMA members to provide free insulin to certain state residents. The law at issue, the Alec Smith Insulin Affordability Act, seeks to achieve a laudable policy goal of improving access to insulin, but it runs afoul of the Constitution because it simply takes manufacturers’ property without any compensation. The NAM previously filed an amicus brief in the District of Minnesota arguing that under the U.S. Supreme Court's per se takings doctrine the government has a categorical duty to pay just compensation for physical takings of property and that the Act at issue fits squarely within the definition of a per se taking. In March 2021, the court granted the state’s motion to dismiss the complaint, holding that the state provides an adequate method for PhRMA’s members to seek compensation for any taking—i.e., by bringing an “inverse condemnation” suit in state court to seek compensation for practically each dose of insulin they must give away under the statute.
PhRMA appealed the case to the Eighth Circuit, and the NAM once again filed a brief in support. The NAM’s brief argues that that under the U.S. Supreme Court's per se takings doctrine the government has a categorical duty to pay just compensation for physical takings of property and holding to the contrary would undermine the security of property rights not just for insulin manufacturers, but for businesses across every industry sector. Further, the district court’s threshold dismissal creates an absurd procedural loophole that would allow states to continuously and physically take manufacturers’ property without an adequate remedy.
Happily, on April 3, 2023, the Eighth Circuit reversed and remand the case, concluding that a state-court inverse condemnation action was not an adequate remedy at law thus justifying the relief PhRMA sought.