In the age of misinformation, what can the government really do?

The Supreme Court is set to hear arguments next month in a case that could have sweeping ramifications for federal health agencies' efforts to combat misinformation.

Murthy v. Missouri alleges that federal officials forced social media and search giants to remove or downgrade posts that questioned vaccine safety, Covid's origins, or shutdown measures. At issue is whether constant government communication with those sites amounted to coercion — and whether federal officials should be doing that all.

Much of the case revolves around White House and CDC officials urging sites like Facebook and Twitter to take down misleading posts and to amplify correct information, which two states and five social media users argue violated their First Amendment rights. A ruling could usher in a new era for the battle against misinformation, but it also comes amid a storm of questions about how and when social media platforms should police content — a conversation Congress is also keen to pursue. Dive into the case with me.

vaping diaries

Juul documents provide a rare look at the true influence of money in politics

A new tranche of previously confidential documents from the e-cigarette company Juul reveals that the company used massive campaign contributions to meet face-to-face with some of the most influential lawmakers in Congress, my colleague Nick Florko reports.

Juul's CEO appears to have donated a whopping $100,000 to attend a dinner hosted by a PAC connected to Rep. Kevin McCarthy. CEO Kevin Burns donated the funds to a committee named "Protect The House" one day before he was scheduled to attend a "Protect the House Dinner" attended by then President Trump at his Washington, D.C. hotel, according to a draft schedule.

Burns also hosted former Rep. Greg Walden (R-Ore.) at Burns' Palo Alto home, according to one internal email. The email continues that $50,000 in donations were made to a committee associated with Walden in advance of the dinner. Walden was, at the time, the head of the House Energy & Commerce Committee, which has assumed primary jurisdiction over regulating the vaping industry. Walden did not respond to a request for comment.

Juul executives discussed courting Democrats with campaign donations, too. In one internal memo prepared by a Juul consultant, they noted that Senate Majority Leader Chuck Schumer "is only meeting with donors where there is the potential of 500k+ for a contribution." Schumer met with Juul's CEO in May 2019, according to several emails, though campaign disclosures don't show Juul donations to Schumer or his associated PACs. Another memo dated May 10, 2019 notes that Juul's CEO "agreed to bundle $15,000-$20,000 in personal contributions for Senator [Kyrsten] Sinema's re-election campaign" in advance of a meeting with her.

The donations to lawmakers were just one strategy Juul was pursuing in 2018 and 2019 to restore its beleaguered public image in Washington. As Nick reports, Juul also aggressively courted Black organizations, and even considered a multi-million dollar partnership with civil rights leader Rev. Al Sharpton. Read more here.

PBM POLICY

Could employers be liable for PBMs overpaying on drugs?

Johnson & Johnson faces a consequential new class action lawsuit — not in its role as a manufacturer of drugs, but as an employer and purchaser of prescription drugs for its workers, Bob Herman and Ed Silverman report.

A J&J employee sued her company on Monday for allegedly overpaying its pharmacy benefit manager for its employees' medicines, citing previous STAT reporting to support some of the allegations. Those overpayments, the lawsuit alleges, ultimately come out of workers' paychecks in the form of high health insurance premiums, higher out-of-pocket drug costs, and stunted wage growth.

The case could resonate far outside J&J, opening the doors for any large, self-insured employer to face legal action, under the federal law known as ERISA, for not being a "prudent" steward of the company's health plan assets. The country's largest PBMs could get swept up into lawsuits, experts say. More from Bob and Ed.

on the hill

Meet the lone Democrat willing to weaken drug pricing reform

Democrats unanimously voted to create a Medicare drug price negotiation program in 2022, but now the pharmaceutical and venture capital industries have picked off one Democrat willing to weaken the policy, my co-author Rachel Cohrs reports. He's co-sponsoring a new bill that would extend drug makers' period of immunity from negotiation for small molecule drugs from nine years to 13 years, to bring it in line with the period for biologics.

He's from North Carolina, a big biotech hub. He's not on any committees with jurisdiction over health care. And he wasn't in Congress when the Inflation Reduction Act passed.

Venture capital advocacy groups who pushed to introduce the legislation said it was tough to get a Democrat to sign on, particularly in an election year. Read more about how they found their guy.

hospital bills

Two Midnights that aren't album of the year

Starting this year, private Medicare plans have to cover their members' hospitalizations at the higher inpatient rate if their doctors predict they'll have to stay beyond two midnights.

Medicare has been following the two-midnight rule for a decade, but the latest change puts Medicare Advantage plans on notice they'll have to follow it, too, after government officials found some were routinely denying coverage for necessary services, STAT's Tara Bannow writes. The change could have a noticeable impact on patient access and out-of-pocket costs — and on MA companies' bottom lines. Until now, plans could more easily reject inpatient claims and pay hospitals at the lower, outpatient rate.

But of course, how much the rule truly helps patients and providers depends on how MA plans respond. They could continue arguing an inpatient stay isn't necessary, which in some cases could even lead to a scheduled procedure getting canceled. Dig into the details with Tara.

marching in to battle

Former officials combine forces to blast march-in rights

Nine former officials hailing from three different administrations are urging President Biden to drop his plan for the National Institute of Standards and Technology to sketch out new scenarios for when the government can march in on pharmaceutical patents and license them to others. And four of the co-signers are former NIST directors.

Biden's idea, intended to help address high drug prices, "distorts" the original intention of march-in rights set out in the Bayh Dole Act and would "invite disaster" for federal agencies, research institutions, pharmaceutical companies and patients, the former Trump, Obama, and Bush officials wrote in a letter published Friday by the Council for Innovation Promotion, which advocates for intellectual property rights.

"We emphasize in the strongest possible terms: the proposed framework poses a major threat to America's prosperity," they added. Read the letter.

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What we're reading

Senate working group proposes 340B reforms, STAT
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Texas Medicaid agrees to fully cover gene therapy for Afghan refugees' infant, STAT
Wegovy maker inks $16.5 billion deal to boost weight-loss drug supply, Axios