Posted by Michael Wonder on 27 Aug 2018
FDA mandated listing of drug prices in ads would flunk legal and constitutional tests
27 August 2018 - We've read with amusement the recent, overblown claims of some constitutional-law commentators and even U.S. Supreme Court justices that the First Amendment has been “weaponised” as a tool of deregulation.
Of course, First Amendment challenges increasingly have become indispensable as politicians and regulators target more and more speech rather than regulate conduct directly.
Consider, for instance, the advertising-disclosure requirement floated last May as a part of the Department of Health and Human Services' (HHS) blueprint to lower prescription drug prices. HHS asked the FDA "to evaluate the inclusion of list prices in direct-to-consumer advertising." The proposal appears to be under serious consideration. HHS Secretary Alex Azar has specifically invoked it when briefing the press and testifying before two Senate committees. And FDA Commissioner Scott Gottlieb indicated (in a May interview) that an agency working group will soon study the idea.
