Federal Judge Blocks Rule Requiring Pharma Companies Include Drug Prices in TV Ads

A federal judge has stopped a Trump administration initiative that would have required drug makers to disclose the list price of drugs in television ads.

Under the proposed rule, if a medication’s list price was more than $35 per month, it would need to be stated during the commercial. The plaintiffs (MERCK & CO., INC., et al.,) say a medication’s list prices and what the medication may cost can vary widely based on an individual’s coverage.

The 27-page decision from U.S. District Judge Amit Mehta in Washington, D.C. ruled that the Health and Human Services Department does not have the regulatory power to make drug manufactures include the cost of drugs in television commercials.

"The court finds that HHS lacks the statutory authority under the Social Security Act to adopt the WAC Disclosure Rule," Mehta wrote.

Organizations including Merck, Eli Lilly and Amgen filed the suit over the rule, arguing that it would violate the companies' free speech rights.

"To be clear, the court does not question HHS’s motives in adopting the WAC Disclosure Rule. Nor does it take any view on the wisdom of requiring drug companies to disclose prices," Mehta wrote. "That policy very well could be an effective tool in halting the rising cost of prescription drugs. But no matter how vexing the problem of spiraling drug costs may be, HHS cannot do more than what Congress has authorized. The responsibility rests with Congress to act in the first instance."

In a statement, HHS spokeswoman Caitlin Oakley said the administration was "disappointed" in the ruling.

"We are disappointed in the court’s decision and will be working with the Department of Justice on next steps related to the litigation," Oakley said.  "Although we are not surprised by the objections to transparency from certain special interests, putting drug prices in ads is a useful way to put patients in control and lower costs."

The rule was originally suggested last May as part of U.S. President Donald Trump's "blueprint" to lower prescription drug costs for U.S. consumers.

Under the rule the wholesale, or list, price would be included if it is $35 or more for a month's supply or the usual course of therapy. HHS said the 10 most commonly advertised drugs have list prices of $488 to $16,938 per month or for a usual course of therapy.

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