Full Fourth Circuit to Rehear Challenge to Maryland Prescription Drug Law
In a pair of decisions this spring, a three-judge panel of the Fourth Circuit held that drug manufacturers were likely to succeed on the merits of their challenges to Maryland and West Virginia statutes seeking to expand availability of discounted prescription drugs for low-income individuals. By a vote of two to one, the panel affirmed (in a reported opinion) a Northern District of West Virginia order denying a preliminary injunction, and it vacated (in an unreported opinion) a District of Maryland order denying a preliminary injunction.
Judge DeAndrea Gist Benjamin, who dissented in both cases, provided this concise summary:
When Congress established the 340B program, its “goal was simple: stretch scarce healthcare dollars and expand access to essential medications for vulnerable communities.” AbbVie, Inc. v. Murrill, 166 F.4th 528, 534 (5th Cir. 2026). The 340B program requires drug manufacturers—as a condition of coverage of their products under Medicaid and Medicare Part B—to agree to offer certain drugs to covered entities that serve uninsured and low-income individuals at discounted prices. 42 U.S.C. § 256b. Many covered entities lack the resources to operate in-house pharmacies, so they partner with outside pharmacies to dispense the discounted drugs. In recent years, drug manufacturers have imposed restrictive policies that constrain covered entities’ use of contract pharmacies. States around the country responded by enacting statutes to combat such policies and preserve access to necessary drugs for the people Congress sought to protect. Drug manufacturers, in turn, have mounted a wave of litigation contending that the 340B program preempts these state measures.
Today, the full 15-judge Fourth Circuit voted to rehear both cases en banc (Maryland order here; West Virginia order here).
Argument will likely take place during the Court’s next sitting, September 15-18, 2026.
Maryland Appellate Blog 