New Bill Announced to End Marketing Tax Deduction

Jan. 16, 2019 – Sens. Jeanne Shaheen (D-N.H.) and Elizabeth Warren (D-Mass.) have co-authored a bill that would “deny the deduction for advertising and promotional expenses for prescription drugs.” The bill, announced Jan. 11, is titled the “End Taxpayer Subsidies for Drug Ads Act.”

“This bill raises significant First Amendment questions,” pointed out Jon Bigelow, executive director of the Coalition for Healthcare Communication. “The tax code normally treats product categories equally, yet this bill clearly targets one category,” he said. “The sponsors would impose on marketing of lifesaving drugs a burden they do not impose on marketing of, for example, liquor, tobacco, or firearms.”

A press release on the bill issued by Sen. Warren states that advertising expenses by pharmaceutical manufacturers “have more than quadrupled over the past two decades,” with the number of ads growing from 79,000 ads in 1997 to 4.6 million in 2016. “Under current law, drug manufacturers are allowed to deduct the cost of advertising expenses from federal taxes. This aggressive advertising also increases demand and allows drug companies to increase prices,” the press release states.

“The marketing singled out in this bill informs patients about diseases and therapies, in the context of FDA-approved labeling,” countered Mr. Bigelow. “It also helps to prompt patients to seek advice and care from healthcare professionals – who then use their professional judgment about whether to prescribe the advertised therapy, another drug or no drug at all.”

The bill would amend the Internal Revenue Code of 1986 to disallow the deduction for DTC consumer advertising of prescription drugs, including ads that are targeted to the general public and published in print media, broadcast on radio, television, or through phone communications systems, used in direct mail or on billboards and through digital platforms and mobile media.

Senate co-sponsors of the legislation include: Sherrod Brown (D-Ohio); Angus King (I-Maine); Maggie Hassan (D-N.H.); Sheldon Whitehouse (D-R.I.); Tammy Baldwin (D-Wisc.); Kirsten Gillibrand (D-N.Y.); Chris Van Hollen (D-Md.); Bernie Sanders (I-Vt.); Jack Reed (D-R.I.); Amy Klobuchar (D-Minn.); Richard Blumenthal (D-Conn.); Mazie Hirono (D-Hawaii); Tina Smith (D-Minn.); Brian Schatz (D-Hawaii); and Dick Durbin (D-Ill.).