Pay For Delay, There For The Taking?

Law360, New York (March 14, 2012, 2:00 PM EDT) -- The most topical constitutional issue implicated by the pharmaceutical industry has been the intersection between off-label promotion and the First Amendment. While we continue to await the U.S. Court of Appeals for the Second Circuit's decision in United States v. Caronia, a new constitutional consideration has been receiving increased attention: the Takings Clause.

In a recent article in Food and Drug Law Journal, Professor Richard Epstein argues that the Biologics Price Competition and Innovation Act of 2009 (Biosimilars Act) raises Fifth Amendment concerns.[1] Epstein's argument may...
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