State-driven litigation has had increasing influence in the development of national policy in recent years, including in national health policy. One prominent recent example includes the efforts of several state governments to bring coordinated constitutional challenges against one of the Obama Administration’s key first term achievements, the Patient Protection and Affordable Care Act. This paper examines how states have influenced health care policy influence in a more subtle but no less important litigation campaign. Over the past decade, state prosecutors have reached numerous multi-million dollar settlements with the nation’s largest pharmaceutical companies imposing a variety of restrictions on prescription drug pricing and advertising. Though often relying upon state law claims, these settlements have created new de facto national standards covering the drug industry – frequently going beyond and even against express congressional action. Relying upon an analysis of numerous legal cases, investigations, and settlements, this paper traces the development of this persistent litigation campaign and discusses the wide policy implications state litigation has had in this area. In doing so, the paper raises important broader questions about the operation of modern American public policy
