Courts/First Amendment

HHS Appealing Federal Court Ruling that Set Aside Drug Prices in TV Ads Rule

Aug. 26, 2019 — The Department of Health and Human Services (HHS) last week filed a notice in the U.S. District Court for the District of Columbia stating that it would appeal the July 8 decision of U.S. District Court Judge Amit P. Mehta that declared invalid and set aside the Centers for Medicare & Medicaid Services (CMS) final rule requiring drug companies to disclose the wholesale acquisition cost or “list price” of their drugs in television ads.

The court’s memorandum opinion stated that CMS “lacks statutory authority under the Social Security Act” to adopt the rule.

“It is not surprising that HHS has appealed the district court judgment, given that the Trump administration has invested significant political capital in this proposal,” said Jon Bigelow, executive director of the Coalition for Healthcare Communication.

“We continue to believe that, in addition to the jurisdictional question over which the district court blocked the regulation, there are serious First Amendment issues with the proposed CMS rule and that it will be thrown out by the Court of Appeals,” he said. “And in the end, the CMS rule would not provide useful information to the consumer, because few patients pay the wholesale acquisition cost of a drug.”