Rep. DeLauro Seeks Ban on DTC Ads, Again

Congresswoman Rosa DeLauro (D-CT) has reintroduced a bill (HR 4385) that would amend the Food, Drug, and Cosmetic Act to restrict direct-to-consumer (DTC) drug advertising. The measure was referred to the House Committee on Energy and Commerce which will consider it before sending it to the House floor for consideration.

DeLauro has been an outspoken critic of the rapid rise in prescription drug costs. She is also part of a Congressional Affordable Drug Pricing Task Force calling for an investigation into the increasing cost of prescription drugs that have been on the market for years, as well as the “astronomical” cost of certain drugs for treating people with HIV/AIDS and hepatitis C.

In 2011, the Congressional Budget Office (CBO) issued a brief about then-proposed moratoriums on DTC ads. It found the magnitude of any effects of a moratorium on such ads for newly approved drugs would probably be small because only a minor share of drugs would be affected. According to the CBO, the expected effects of a moratorium include: 

• Drug manufacturers would probably expand their marketing to physicians to substitute for at least some of the banned advertising to consumers. 
• The number of prescriptions filled would probably decrease for some drugs. For other drugs, the number of prescriptions might be little changed, owing both to the likely substitution of other types of promotions and to the various other factors that influence a drug’s reach in the prescription drug market.
• Any change in prescription drug prices would depend on changes in demand; to the extent that the effects on demand are likely to be limited, so too are the effects on prices.

Meanwhile, the American Medical Association (AMA), which for years has voted to support a ban on DTC advertising, switched gears this summer and is advocating for more transparency in pricing to protect patients. At its annual meeting in July, the AMA said it “adopted several policies, including policies on direct-to-consumer ads and naloxone pricing that aim to give patients more information about drugs prescribed to them and shed light on the rationale for price increases.” One policy adopted calls on drug marketers to disclose the suggested retail prices of drugs when running DTC ads.

“The AMA will urge the appropriate federal agencies to include that requirement,” the group said. “One study showed that prescriptions medications that were advertised directly to consumers saw increase in prices by 34.2% compared to a 5.1% increase in other pharmaceuticals. Pharmaceutical companies know their advertising pays off by having patients pressure physicians to prescribe certain medications that cost more than lower-cost alternatives and are not necessarily as efficacious. ”

During an 11/15 Senate floor speech, Senator Dick Durbin (D-IL) outlined new legislation he intends to introduce that would require the pricing disclosures in DTC ads. The Drug-price Transparency in Communications (DTC) Act of 2017 would require drug companies to disclose the Wholesale Acquisition Cost (WAC) of a prescription medication in DTC ads and in marketing efforts addressed to prescribers. “Failure to do so would be penalized as a false or misleading statement, resulting in a fine of up to $1 million for a first-time violation that would be transferred to the National Institutes of Health (NIH) for medical research,” he said.

Text of the DeLauro bill is identical to a bill introduced last year (see here), according to her staff.