ANA Opposes HHS Price Disclosure Rule for Prescription Drug Advertising

FOR IMMEDIATE RELEASE

ANA OPPOSES HHS PRICE DISCLOSURE RULE FOR PRESCRIPTION DRUG ADVERTISING

WASHINGTON, D.C. (Nov. 13, 2019) – ANA, along with co-plaintiffs Merck, Eli Lily, and Amgen, has filed with the U.S. Court of Appeals for the District of Columbia a brief asking it to uphold a D.C. District Court decision that invalidated a Department of Health and Human Services (HHS) rule requiring pharmaceutical drug makers to include the “list price” for drugs in DTC television ads. The rule would have applied to any DTC TV ad for drugs whose price exceeds $35 for a one-month supply, and would have required ads to include textual statements of the drug’s “wholesale acquisition cost” (WAC) as the list price, even though WAC bears no relation to what consumers actually pay.

The D.C. District Court decision held that HHS did not have the authority to require such a mandated disclosure, and HHS appealed that decision. ANA and its co-plaintiffs had also challenged the rule as an unconstitutional incursion on advertisers’ speech, but the court did not even need to reach that issue given its finding on lack of authority to adopt the rule in the first instance.

Dan Jaffe, Group EVP of the ANA, stated “enforcement of this rule would severely hurt the public. The so called ‘list price’ government mandated ad disclosure would be highly inaccurate for a vast number of consumers.”

Jaffe pointed out “HHS’s own data shows that the mandated list price disclosures, in many instances, will substantially overstate the real costs of prescription drugs to consumers. Therefore, this price disclosure would be misleading and tend to disincentivize consumers seeking potentially valuable health enhancing treatments.”

Jaffe emphasized that “the last thing the public needs is for the government to require that information be forced to be carried in DTC prescription drug advertising that is highly misleading. This type of inaccurate disclosure could also undermine the public’s faith in the accuracy of the other information in DTC ads.”

Jaffe concluded, “ANA and our co-plaintiffs are strongly urging the Court of Appeals to affirm the lower court’s decision striking down this misguided rule, which is beyond HHS’s authority, and clearly violates First Amendment protections of commercial speech.”

To learn more about ANA and our efforts to defend free speech, visit www.ana.net/advocacy.

ABOUT THE ANA:
The  ANA’s mission is to drive growth for marketing professionals, for brands and businesses, and for the industry. Growth is foundational for all participants in the ecosystem. The ANA seeks to align those interests by leveraging the 12-point ANA Masters Circle agenda, which has been endorsed and embraced by the ANA Board of Directors and the Global CMO Growth Council. The ANA’s membership consists of more than 1,600 domestic and international companies, including over 1,000 client-side marketers and nonprofit fundraisers and 600 marketing solutions providers (data science and technology companies, ad agencies, publishers, media companies, suppliers, and vendors). Collectively, ANA member companies represent 20,000 brands, engage 50,000 industry professionals, and invest more than $400 billion in marketing and advertising annually.

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Tatiana Britt
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