The Association of National Advertisers joined three companies — Amgen, Merck and Eli Lilly — in the suit aimed at blocking the rule, which is scheduled to go into effect in July.
They argued the prices the government would have them post are not what consumers actually pay.
“Not only does the rule raise serious freedom of speech concerns, it mandates an approach that fails to account for differences among insurance, treatments, and patients themselves, by requiring disclosure of list price,” Amgen said in a statement, according to the Los Angeles Times.
“We believe the new requirements may cause patients to decide not to seek treatment because of their perception that they cannot afford their medications, when in fact many patients do not pay anything near list price,” Merck said in its statement, The New York Times reported.
The federal government fired back.
“If the drug companies are embarrassed by their prices or afraid that the prices will scare patients away, they should lower them,” Caitlin Oakley, a spokeswoman for the Department of Health and Human Services, said in a statement.
“President Trump and [HHS] Secretary [Alex] Azar are committed to providing patients the information they need to make their own informed health care decisions.”
The policy requires drug makers to post in their ads the list price for a 30-day supply of any drug that is covered by Medicare and Medicaid that also has a cost of at least $35 per month.
“Requiring the inclusion of drugs’ list prices in TV ads is the single most significant step any administration has taken toward a simple commitment: American patients deserve to know the prices of the health care they receive,” Azar said when the policy was announced, according to CNN.
“Patients have a right to know, and if you’re ashamed of your drug prices, change your drug prices,” Azar said then.
“It’s that simple,” Azar said.
The lawsuit claims HHS lacks the authority to issue the rule and that the rule violates the First Amendment, The Hill reported.
“Far from promoting transparency and improved decision-making, therefore, the rule would instead force pharmaceutical companies to mislead tens of millions of Americans about the price they would actually pay for important medicines that might improve their health or even save their lives,” the lawsuit states.
The lawsuit adds that HHS “has no legitimate interest, much less a substantial one, in forcing pharmaceutical manufacturers to make statements in direct- to-consumer messaging that it concedes may mislead patients about their out-of-pocket costs for medications.”
“HHS has admitted that it lacks any proof that compelling these statements will advance its stated goal of reducing costs for Medicare and Medicaid.”
Azar has said that the information is important for consumers.
“Claiming list prices don’t matter is almost the same as claiming there is no problem with high drug costs at all — and I don’t think many American seniors or patients with serious illnesses would say that’s the case,” he said last month.
Dan Jaffe, an executive vice president for the Association of National Advertisers, joined the drug companies in the lawsuit for fear of what might come next.
The rule “would substantially undermine First Amendment protections for advertisers and would certainly create precedent that would go far beyond the prescription drug area,” he told The New York Times.
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