> ## Content Index
> Fetch the complete content index at: https://www.fdaweb.com/llms.txt
> Use this file to discover other available public pages before exploring further.

# Experts Divided Over Drug Price Ad Proposal
- URL: https://www.fdaweb.com/experts-divided-over-drug-price-ad-proposal/
- Published: 2018-10-18T12:00:00.000Z
- Updated: 2026-09-15T00:39:16.000Z
- Author: David McFarland
- Tags: Drugs, FDA Policy/General, #legacy-id-D5142612

Experts have varying opinions on the legality and potential effectiveness of a Trump administration proposal to lower drug prices by requiring manufacturers to include pricing information in television ads. That’s the conclusion drawn from a *Bloomberg Law* online [post](https://news.bloomberglaw.com/pharma-and-life-sciences/requiring-price-info-in-drug-ads-may-strain-agency-authority?ref=fdaweb.com). Under the proposal announced 10/15, the HHS Centers for Medicare and Medicaid Services (CMS) would require companies to include the manufacturer’s wholesale acquisition cost, or list price, in any television ads. The proposed rule would apply to virtually all drugs covered by Medicare and Medicaid.

Washington University law professor **Rachel Sachs** told Bloomberg she was skeptical of HHS’ arguments that CMS has authority to issue such a regulation. “Given that FDA has explicit authority here and CMS’ authority is tied specifically to Medicare and Medicaid, regs that try to regulate marketing more broadly need greater justification,” she said.

Washington Legal Foundation senior litigation counsel **Corey Andrews** said the proposal could be challenged legally on two grounds: **(1)** nothing in FDA law or regulations contemplates the mandatory disclosure of drug prices in ads, and **(2)** a list price disclosure would single out consumer ads because of the category of goods being promoted — prescription drugs — and not because they are false or misleading.

Andrews said such content-based discrimination of truthful speech is generally subject to judicial strict scrutiny, the highest standard used to determine a First Amendment violation. Under such a test, a regulation is only constitutional if the government can show it is needed to achieve a compelling state interest.

Attorney **Jonathan Emord**, who has represented dietary supplement manufacturers in several First Amendment clashes with FDA, said he thought the regulation could be written in a way that would be acceptable. “The courts have upheld disclosure requirements against ‘compelled speech’ challenges when the mandated disclosure does nothing more than require revelation of purely factual information (e.g., ingredient labeling, expiration dating, and price information,” he said.

Even if the proposal survives expected legal challenges, opinions differ on its potential to actually lower drug prices. While Sachs said it is notable that HHS is not proposing any real enforcement mechanism, Georgetown University law professor **David Vladeck** said the proposal is better than nothing and could clear up some confusion. “The fact that drug pricing is so opaque and confusing to consumers is a good reason to try to make the process as transparent and stable as possible,” he said.