The Washington Legal Foundation said the Trump Administration can't force TV drug advertisers to include their wholesale cost of prescription medicines in TV and online advertising, ads that are already packed with required disclosures about efficacy and side effects. WLF said the administration should with draw the proposal.
The Centers for Medicare and Medicaid Services (CMS), which administers those government health programs, has proposed a new rule that would require such "list price" disclosures in DTC (direct-to-consumer) ads in the administration's effort to reduce healthcare costs.
It isn't that the WLF is against reducing healthcare costs, it suggests. "No matter how well-meaning its intentions, CMS may exercise only the limited regulatory authority that Congress granted to it by statute. Yet no statute authorizes CMS to require disclosure of list prices in DTC television ads," it said in comments on the proposal filed Monday (Dec. 17) with CMS.
And even if it did have the authority, WLF argues that the mandate would be unconstitutional because it would "unduly burden drug makers' First Amendment right to speak truthfully about their products."
WLF has long pushed back on Food and Drug Administration efforts to limit or compel commercial speech.
They say the CMS is specifically proposing to "require that for prescription drug and biological products that can be reimbursed directly or indirectly through or under Medicare or Medicaid, DTC ads on television (including broadcast, cable, streaming, and satellite communication) for such products must include the product’s current list price, defined as the Wholesale Acquisition Cost.”
WLF said that will cost drug manufacturers millions that won't be put into developing the latest life-saving drug.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.