HHS Advancing DTC Pricing Disclosure Rulemaking

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HHS’s Centers for Medicare & Medicaid Services (CMS) has submitted to OMB for review 3/18 a proposed rule to require including drugs’ list prices in direct-to-consumer (DTC) advertising. The OMB submission was briefly announced by HHS secretary Alex Azar during a speech to the American Health Lawyers Association about lowering drug prices 3/18.

 

The proposed ruled was released for comments 10/2018. Comments submitted by the Washington Legal Foundation (WLF) called on CMS to withdraw its proposed rule, saying that CMS can only exercise the limited regulatory authority granted to it in laws approved by Congress. There is no law that authorizes CMS to require disclosure of list prices in DTC television ads, it says. The comment also says that the proposal would violate the drug makers’ First Amendment right to speak truthfully about their products. “The First Amendment protects a speaker’s choices about both what to say and what not to say,” WLF declared. “And by compelling drug makers to speak a particular message in their DTC ads, the proposed rule seeks to alter the content of their speech.”

 

Meanwhile, Johnson & Johnson pharmaceutical group Janssen recently said it was taking the lead to begin including list price information in DTC TV ads. Beginning this quarter, the company said pricing disclosures will begin with its oral anti-coagulant Xarelto, and the advertising will include both the list price and potential patient out-of-pocket costs. The company’s decision to disclose the pricing comes in reaction to the Trump Administration’s American Patients First Blueprint issued 5/2018 that proposed requiring the pricing information in DTC ads. “We saw an opportunity to envision – and implement – additional transparency that would enable patients to make more informed decisions,” said Janssen group chairman Scott White in a company release.

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