The South Dakota Supreme Court ruled Wednesday in favor of Attorney General Marty Jackley and against the pharmaceutical industry’s effort to throw out the A.G.’s explanation of Initiated Measure 26, the prescription drug price cap.
The court ruled pretty much as I explained they would back in September when the Pharmaceutical Research and Manufacturers of America and their point propagandist in South Dakota, Joni Johnson, filed their dilatory lawsuit against A.G. Jackley’s objective, clear, simple, and thus entirely legal explanation of this ballot question. The plaintiffs wanted the explanation to include their arguments that IM 26 could raise drug prices, cause drug shortages, and endanger the rebates and discounts that the VA gets for drugs. Citing their 2016 rejection of the payday lenders’ challenge to the A.G.’s explanation of the 36% payday loan rate cap, the court said that the plaintiffs’ “suggested effects are facially speculative” and that “the Attorney General is not required to ‘include every practical or possible effect of each initiated measure.’”
The plaintiffs fussed mightily over the fact that the Attorney General didn’t mention Section 5, the provision granting the petition sponsors legal standing to defend IM 26 in court if it passes and then faces court challenges. The court said Section 5 isn’t important enough to demand attention in the explanation on the ballot:
Here, section 5 is a contingent, legal-standing provision that is wholly collateral to the proposed measure’s purpose and effect of limiting drug prices. Additionally, legal standing is a litigation issue that affects the personal interests of the proponents rather than the electorate as a whole [South Dakota Supreme Court, opinion, Johnson and PhaRMA v. Jackley, 2018.05.09, p. 9].
The Supreme Court also upheld the lower court ruling that explaining Section 5 would have required more text than would fit under the ballot question explanation’s 200-word limit.
The Secretary of State approved IM 26 for the ballot on April 11. The deadline for challenging that approval was yesterday at 5 p.m., and there’s been no announcement from the Secretary of the receipt of any challenge. The pharmaceutical lobby could still challenge the petition in court, but given their lawyers couldn’t win the argument on the ballot question explanation, perhaps they’ve decided to focus their money now on marketing and misinformation.