25.627.15 100th Legislative Session 154
2025 South Dakota Legislature
Senate Bill 154
ENROLLED
AN ACT
ENTITLED An Act to prohibit pharmaceutical manufacturers from interfering in
contracts between 340B entities and pharmacies and to provide a penalty
therefor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 37-24-6 be AMENDED:
37-24-6. It is a deceptive act or practice for any person to:
(1) Knowingly act, use, or employ any deceptive act or practice, fraud, false pretense,
false promises, or misrepresentation or to conceal, suppress, or omit any material
fact in connection with the sale or advertisement of any merchandise or the
solicitation of contributions for charitable purposes, regardless of whether any
person has in fact been misled, deceived, or damaged thereby;
(2) Advertise price reductions without satisfying one of the following:
(a) Including in the advertisement the specific basis for the claim of a price
reduction; or
(b) Offering the merchandise for sale at the higher price from which the
reduction is taken for at least seven consecutive business days during the
sixty-day period prior to the advertisement.
Any person advertising consumer property or services in this state, which
advertisements contain representations or statements as to any type of savings
claim, including reduced price claims and price comparison value claims, shall
maintain reasonable records for a period of two years from the date of sale and
advertisement, which records shall disclose the factual basis for such
representations or statements and from which the validity of any such claim be
established. However, these reasonable record provisions do not apply to the sale
of any merchandise that is of a class of merchandise that is routinely advertised
on at least a weekly basis in newspapers, shopping tabloids, or similar publications 25.627.15 2 154
SB154 ENROLLED
and that has a sales price before price reduction that is less than fifteen dollars per
item;
(3) Represent a sale of merchandise at reduced rates due to the cessation of business
operations and after the date of the first advertisement remain in business under
the same, or substantially the same, ownership or trade name, or continue to offer
for sale the same type of merchandise at the same location for more than one
hundred twenty days;
(4) Give or offer a rebate, discount, or anything of value to a person as an inducement
for selling consumer property or services in consideration of giving the names of
prospective purchasers or otherwise aiding in making a sale to another person, if
the earning of the rebate, discount, or other thing of value is contingent upon the
occurrence of an event subsequent to the time the person agrees to the sale;
(5) Engage in any scheme or plan for disposal or distribution of merchandise whereby
a participant pays a valuable consideration for the chance to receive compensation
primarily for introducing one or more additional persons into participation in the
planner's scheme or for the chance to receive compensation when the person
introduced by the participant introduces a new participant;
(6) Send, deliver, provide, mail, or cause to be sent, delivered, provided, or mailed
any bill or invoice for unordered property or unordered service provided;
(7) Advertise a rate, price, or fee for a hotel, motel, campsite, or other lodging
accommodation which is not in fact available to the public under the terms
advertised. It is not a violation of this subdivision to establish contract rates which
are different than public rates;
(8) Charge a rate, price, or fee for a hotel, motel, campsite, or other lodging
accommodation which is different than the rate, price, or fee charged on the first
night of the guest's stay unless, at the initial registration of the guest, a written
notification of each price, rate, or fee to be charged during the guest's reserved
continuous stay is delivered to the guest and an acknowledgment of receipt of the
notice is signed by the guest and kept by the innkeeper for the same period of time
as is required by § 34-18-21;
(9) Knowingly fail to mail or to deliver by electronic means to a future guest a written
confirmation of the date and rates of reservations made for any accommodation at
a hotel, motel, campsite, or other lodging accommodation when a written request
for confirmation is received from the future guest; 25.627.15 3 154
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(10) Require money in advance of arrival or a handling fee in the event of cancellation
of any hotel, motel, campsite, or other lodging accommodation unless the
innkeeper has a written policy or a separate contract with the guest stating so that
is mailed or delivered by electronic means to the guest at or near the making of
the reservation;
(11) Knowingly advertise or cause to be listed through the internet or in a telephone
directory a business address that misrepresents where the business is actually
located or that falsely states that the business is located in the same area covered
by the telephone directory. This subdivision does not apply to a telephone service
provider, an internet service provider, or a publisher or distributor of a telephone
directory, unless the conduct proscribed in this subdivision is on behalf of the
provider, publisher, or distributor;
(12) Sell, market, promote, advertise, or otherwise distribute any card or other
purchasing mechanism or device that is not insurance that purports to offer
discounts or access to discounts from pharmacies for prescription drug purchases
if:
(a) The card or other purchasing mechanism or device does not expressly state
in bold and prominent type, prevalently placed, that discounts are not
insurance;
(b) The discounts are not specifically authorized by a separate contract with
each pharmacy listed in conjunction with the card or other purchasing
mechanism or device; or
(c) The discount or access to discounts offered, or the range of discounts or
access to the range of discounts, is misleading, deceptive, or fraudulent,
regardless of the literal wording.
The provisions of this subdivision do not apply to a customer discount or
membership card issued by a store or buying club for use in that store or buying
club, or a patient access program voluntarily sponsored by a pharmaceutical
manufacturer, or a consortium of pharmaceutical manufacturers, that provide free
or discounted prescription drug products directly to low income or uninsured
individuals either through a discount card or direct shipment;
(13) Send or cause to be sent an unsolicited commercial electronic mail message that
does not include in the subject line of such message "ADV:" as the first four
characters. If the message contains information that consists of explicit sexual
material that may only be viewed, purchased, rented, leased, or held in possession 25.627.15 4 154
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by an individual eighteen years of age and older, the subject line of each message
shall include "ADV:ADLT" as the first eight characters. An unsolicited commercial
electronic mail message does not include a message sent to a person with whom
the initiator has an existing personal or business relationship or a message sent at
the request or express consent of the recipient;
(14) Violate the provisions of § 22-25-52;
(15) Knowingly fail to disclose the amount of any mandatory fee when reservations are
made by a future guest at a hotel, motel, campsite, or other lodging
accommodations. A mandatory fee under this subdivision includes any resort fee
or parking fee charged by the lodging accommodations whether or not the guest
utilizes the amenities or the parking facility for which the fee is assessed;
(16) Cause misleading information to be transmitted to users of caller identification
technologies or otherwise block or misrepresent the origin of a telephone
solicitation. No provider of telephone caller identification services,
telecommunications, broadband, or voice over internet protocol service may be
held liable for violations of this subdivision committed by other individuals or
entities. It is not a violation of this subdivision:
(a) For a telephone solicitor to utilize the name and number of the entity the
solicitation is being made on behalf of rather than the name and number of
the telephone solicitor;
(b) If an authorized activity of a law enforcement agency; or
(c) If a court order specifically authorizes the use of caller identification
manipulation; or
(17) Violate section 3 or 4 of this Act.
Each act in violation of this section under one thousand dollars is a Class 1
misdemeanor. Each act in violation of this statute over one thousand dollars but under
one hundred thousand dollars is a Class 6 felony. Each act in violation of this section over
one hundred thousand dollars is a Class 5 felony.
Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 58:
Terms used in this chapter mean:
(1) "Pharmaceutical manufacturer," any person engaged in the business of preparing,
producing, converting, processing, packaging, labeling, or distributing a
prescription drug, but not including a wholesale distributor or dispenser; 25.627.15 5 154
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(2) "Pharmacy," any place within or outside this state, licensed by the State Board of
Pharmacy, where drugs are dispensed, and pharmaceutical care is provided to
residents of this state;
(3) "340B drug," a drug purchased through the 340B drug discount program by a 340B
entity;
(4) "340B drug discount program," a program that imposes limitations on the prices
of drugs purchased by covered entities, in accordance with 42 U.S.C. § 256b
(January 1, 2025); and
(5) "340B entity," a covered entity as defined in 42 U.S.C. § 256b(a)(4) (January 1,
2025).
Section 3. That a NEW SECTION be added to a new chapter in title 58:
A pharmaceutical manufacturer may not, directly or indirectly, deny, restrict, or
prohibit the acquisition of a 340B drug or the delivery of a 340B drug to a location that is
authorized to receive the drug by a 340B entity or pharmacy, unless receipt of the 340B
drug is prohibited by federal law.
Nothing in this section requires a pharmaceutical manufacturer to provide a 340B
drug price discount to a pharmacy.
Nothing in this section prohibits a pharmaceutical manufacturer from limiting
distribution of a drug in accordance with 21 U.S.C. § 355-1 (January 1, 2025).
Section 4. That a NEW SECTION be added to a new chapter in title 58:
A pharmaceutical manufacturer may not , directly or indirectly, require a 340B
entity or pharmacy to submit any claim or utilization data, as a condition for allowing the
acquisition of a 340B drug by, or delivery of a 340B drug to, a 340B entity, unless the
claim or utilization data sharing is required by federal law.
Nothing in this section prohibits a pharmaceutical manufacturer from conducting
an audit of a 340B entity, in accordance with 42 U.S.C. § 256b(a)(5)(C) (January 1, 2025).
Section 5. That a NEW SECTION be added to a new chapter in title 58:
In addition to any other remedy provided by law, a 340B entity or a pharmacy may
file a civil action against a pharmaceutical manufacturer for a violation of this Act, and
may request injunctive relief, actual and consequential damages, and reasonable
attorneys' fees and costs. 25.627.15 6 154
SB154 ENROLLED
An Act to prohibit pharmaceutical manufacturers from interfering in contracts between 340B
entities and pharmacies and to provide a penalty therefor.
I certify that the attached Act originated in
the:
Senate as Bill No. 154
Secretary of the Senate
President of the Senate
Attest:
Secretary of the Senate
Speaker of the House
Attest:
Chief Clerk
Senate Bill No. 154
File No. ____
Chapter No. ______
Received at this Executive Office
this _____ day of _____________,
2025 at ____________M.
By
for the Governor
The attached Act is hereby
approved this ________ day of
______________, A.D., 2025
Governor
STATE OF SOUTH DAKOTA ,
ss.
Office of the Secretary of State
Filed ____________, 2025
at _________ o'clock __M.
Secretary of State
By
Asst. Secretary of State