In the 2002 Term, the U.S. Supreme Court will hear the case of Pharmaceutical Research and Manufacturers of America (PhRMA) v. Concannon, in which PhRMA, the plaintiff-appellant, will argue that the State of Maine's program to supply low-cost prescription drugs to its citizens (the Maine Rx Program) violates the dormant Commerce Clause doctrine. After the Program became law in 2000, PhRMA sought and obtained an injunction from a federal district court preventing the law from going into effect. Shortly thereafter, the First Circuit unanimously reversed the district court and lifted the injunction. In June 2002, the Supreme Court granted certiorari.
This Article argues that the Maine Rx Program violates the dormant Commerce Clause doctrine because it links a facially nondiscriminatory tax with a subsidy in a way that, in combination, burdens out-of-state drug sellers. The Supreme Court has found similar programs to be invalid in past cases, most recently in the 1994 case West Lynn Creamery, Inc. v. Healy.