Posted by Michael Wonder on 25 Nov 2019
Are Government efforts to lower drug prices violating the First Amendment?
25 November 2019 - Pharmaceutical companies rely on direct-to-consumer advertisements to reach potential customers and extol the benefits of their medications.
This type of “commercial speech” enjoys protection under the First Amendment, though not to the same degree as other forms of expression. Merck v. HHS tests the limits of the federal government’s ability to control and compel commercial speech.
Several drug manufacturers and a professional organisation of advertisers, whose businesses are affected by a Department of Health and Human Services rule requiring direct-to-consumer television ads to include a disclosure of the wholesale price of the advertised drugs, sued to block the rule. This rule was promulgated through the Centers for Medicare and Medicaid Services and justified under the power given HHS by the Social Security Act to issue rules “necessary to the efficient administration” of those programs—on the theory that the disclosures would result in lower prices for Medicare and Medicaid recipients. This regulation requires the wholesale acquisition cost of a 30-day supply of any advertised drug to be featured on any TV ad.
