A U.S. appeals court this week upheld a preliminary injunction won by Gilead Sciences against several alternative funding programs, or AFPs, and related businesses accused of importing medicines through unauthorized foreign channels. Patient advocacy groups say the decision could force many of these programs to shrink sharply or disappear.
The immediate lawsuit is a fight between competing businesses, not a direct confrontation between capital and labor. But workers and patients will carry the consequences. AFPs have spread as prescription drug costs have climbed, offering employers and health plans a way around high U.S. prices by obtaining medicines overseas. Federal authorities say these imports violate Food and Drug Administration rules. The programs maintain that the medicines are safe, legal and equivalent to those sold in the United States.
Gilead filed its case in December 2024 after a patient in Maryland received Biktarvy, the company’s HIV medication, through the mail from Turkey. The package carried instructions in Turkish. The company sued Rx Valet and several affiliated firms, along with Meritain Health, an administrator of employee health plans owned through CVS Health’s Aetna, and the pharmacy benefits manager Pro-Act. Meritain denies supporting the importation of non-FDA-approved medicines and says it’s defending itself against Gilead’s allegations.
The appeals court sided with Gilead. It found that the differences between the company’s U.S. products and the medicines imported by the defendants were “material, not theoretical,” and stressed that the defendants had bypassed Gilead’s authorized supply chain.
“What Gilead sells in Turkey and what it sells in Maryland share a chemical formula but materially differ and travel through different quality-control system,” the ruling said.
Gilead presented the decision as a victory for patient safety and FDA oversight. Shabbir Imber Safdar, executive director of the Partnership for Safe Medicines, said the ruling makes clear that “you cannot import untraceable medicine with foreign-language labels, hand it to American patients, and call it equivalent to an FDA-approved medicine.”
The safety issue isn’t imaginary. Labels patients can’t read and drugs moving through an unauthorized chain can create real problems involving instructions and traceability. Marxists have no reason to wave those dangers away. The real question is why patients and health plans are being pushed toward such a chain in the first place, and whose power is strengthened when that route is closed.
Biktarvy has a use-value: it treats HIV. For a patient, that medical use is the whole point. Under capitalism, however, the medicine is also a commodity. Its exchange-value must be realized through a market controlled by its corporate owner. Gilead’s authorized supply chain doesn’t simply move tablets from a factory to a patient. It protects the company’s command over where the drug is sold, under what conditions and through which channels.
Public safeguards operate inside a health system organized around private property and profit. FDA oversight can serve a genuine protective purpose while the regulated market still denies affordable access to workers. Gilead’s concern for safety and its material interest in defending its distribution system can exist at the same time. Capital rarely relies on a single motive when profit and legitimacy can reinforce one another.
The international character of the dispute also exposes the logic of imperialism. Imperialism isn’t a borderless world market. Monopoly corporations operate across borders, divide markets and maintain different national channels, while workers are told that a medicine available elsewhere can’t simply cross the same borders. Capital wants the freedom to organize production and sales internationally, but it demands barriers whenever cheaper circulation threatens a protected market. The tablet may share a chemical formula across countries, yet the right to buy and distribute it remains fenced in by corporate control, national regulation and stark inequalities in purchasing power.
AFPs aren’t a working-class answer to this arrangement. They’re capitalist middlemen making a business out of the price gaps and bureaucratic failures produced by the larger system. Their model may reduce a bill for an employer or help a patient obtain a needed drug, but it can also shift risk onto that patient. They don’t abolish monopoly pricing. They survive by finding a side route around it.
The court has now moved to close that side route. Gilead’s control over its U.S. supply chain is stronger, and AFPs face the prospect of contraction or collapse. Yet none of the conditions that made them profitable have disappeared. Patients still need medicine. Employers and insurers still seek to cut costs. Drug monopolies still control access to products created through the accumulated labor and scientific knowledge of society.
That’s the contradiction laid bare by the ruling: medicine is social in its production and necessary in its use, but private in its ownership and restricted in its circulation, allowing private interests to put profit before patient health.
