WLF Wants Ban on Drug Prices in Ads

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Washington Legal Foundation (WLF) is urging the U.S. Court of Appeals for the DC Circuit to affirm a decision blocking an HHS rule that would require drug makers to include the wholesale acquisition cost (defined by HHS as the “list price”) of any drug advertised in direct-to-consumer (DTC) TV ads. WLF’s amicus brief was joined by the Allied Educational Foundation.

In a statement, WLF says the HHS rule is being promoted as part of the Trump administration’s effort to reduce overall healthcare costs. “No matter how well-meaning its intentions,” WLF says, “HHS may exercise only the limited regulatory authority that Congress granted it by statute. Yet no statute authorizes the Centers for Medicare and Medicaid Services to require disclosure of list prices in DTC television ads.”

The brief says the lack of statutory authority is not the only fatal flaw in the proposed rule. It says the list price disclosure would also violate drug makers’ First Amendment rights by compelling them to speak a particular message in their ads. “Under Supreme Court precedent,” the brief says, “HHS’ controversial DTC rule violates the First Amendment because it misleads consumers about their likely out-of-pocket costs for prescription drugs

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