Three of the nation’s major drug manufacturers sued the Trump administration Friday to block a rule that would force them to put the price of their drugs in television advertisements beginning this summer.
The lawsuit, filed Friday in federal court in Washington by Merck, Eli Lilly and Amgen, as well as a trade group for advertisers, argues that the rule is illegal because it violates the companies’ First Amendment rights. It also claims that the ad disclosures, which require drug manufacturers to include the list price of any drug that costs more than $35 a month, could mislead consumers because insurers often cover the bulk of a drug’s cost.
“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, whose top-selling product is the pricey cancer drug Keytruda, said in a statement.
Lilly, which is one of three manufacturers of insulin under scrutiny for rising list prices — said the federal government had overstepped its authority. “The impetus for the lawsuit is drug prices in TV ads, but the crux of it is HHS not having the authority to mandate this action,” the company said in a statement, referring to the Department of Health and Human Services.
The trade group, the Association of National Advertisers, was also listed as a plaintiff in the suit.
Representatives for Amgen and HHS could not immediately be reached for comment.
Alex Azar, the secretary of health and human services, announced the new rule in May, contending that forcing pharmaceutical companies to disclose their prices could push companies to lower them.
“If you’re ashamed of your drug prices, change your drug prices,” said Azar, who was a top executive at Lilly before joining the Trump administration in January 2018. “It’s that simple.”
Many drug companies, anticipating the rule, had set up their own websites with information that included list prices, as well as typical out-of-pocket costs and sources of financial assistance.
Johnson & Johnson said this year that its ads would begin disclosing the list price, starting with those for the anti-stroke drug Xarelto that carries a $448 monthly list price, along with information about the typical consumer