By: David Oxenford, Wilkinson Barker Knauer LLP
Last week, a Federal District Court ruled that the US Department of Health and Human Services did not have the authority to require that drug manufacturers include pricing information on their television commercials.
We wrote about that requirement, here – a requirement that was supposed to go into effect this summer. However, the District Court judge found that there was no statutory authority on which HHS could rely for the adoption of this rule. HHS argued that its authority to adopt rules to administer the Social Security program was sufficient to adopt the advertising requirement as that requirement would lead to lower prices for drugs purchased by those using Social Security. But, the Court found, Congress did not include any specific language giving HHS authority to regulate advertising on prescription drugs, nor did the Court believe that the required disclosure of pricing information was necessary to “administer” the Social Security program, even if it did have the effect of lowering prices as HHS hoped. Given this decision, the rules will not go into effect. Barring an appeal by HHS, it would appear that Congress will have to take action before these rules could be adopted. So, for now, TV broadcasters will not be seeing mandatory disclosures of drug prices on the ads that they run.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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