Major drug makers are suing to block a new rule that requires TV drug advertisements to include the products’ prices. Eli Lilly, Merck and Amgen are among the drug companies challenging the rule.
The Department of Health and Human Services (HHS) finalized the rule in May, which would force pharmaceutical companies to publicize the cost of their drugs. Pharmaceutical companies will be required to include the cost of any medication that costs more than $35 for a month’s supply.
“Patients deserve more transparency, and this administration is committed to delivering it,” the HHS said in a statement.
The rule has been criticized by the pharmaceutical industry due to alleged free speech concerns and other shortcomings.
According to the lawsuit, the rule would mislead patients about how much they have to pay for the drug. It also alleges that HHS overstepped its authority.
Drug makers question the usefulness of listing drug prices in TV advertisements, as people with insurance typically pay less. Advertising list prices, they say, will drive patients away from the drugs.
The new rule does not have an enforcement mechanism, but according to Health Secretary Alex Azar, failure to include the price would be considered a deceptive trade practice which may prompt lawsuits.
Legal scholars are still debating whether the new policy violates the Frist Amendment. The argument will likely center on the government’s rationale for the price disclosures and whether it will help consumers and government programs.
The issue of free speech has thwarted other regulations from the Food and Drug Administration. The FDA previously proposed that tobacco companies include graphic warnings on cigarette cartons, but that rule was struck down. The court found that the FDA could not prove that the images would actually lower smoking rates.
A court battle over the drug price rule could hinder the administration’s goals to drive down drug prices through regulations.
