HHS files appeal to keep plan for drug prices in TV ads alive

The Trump administration is appealing a judge’s decision to block its plan to force drug companies to include list prices in television advertisements. 

The Department of Health and Human Services filed a notice (PDF) of appeal on Wednesday morning. Following the ruling last month that spiked the rule, HHS officials indicated they were considering such a step. 

HHS first unveiled its plan to require drug manufacturers to put the list price for products in direct-to-consumer TV ads last fall and finalized it in May. Under the rule, pharma companies would have been required to include the wholesale acquisition price for a drug in ads if it exceeds $35 for a one-month supply. 

Federal health officials, including HHS Secretary Alex Azar, argued that including prices was a crucial transparency measure, even as some in the industry questioned the value of providing consumers with list pricing. 

RELATED: Trump administration’s push for prices in drug ads facing a likely legal fight 

The proposed rule was unveiled the same day that the Pharmaceutical Research and Manufacturers of America (PhRMA) announced they would push members to include messaging in ads that would direct consumers to online pricing information. 

Azar said that wasn’t enough to ensure patients could make informed decisions about the cost of medications. 

Merck, Eli Lilly, and Amgen sued HHS in June to overturn the rule, which was set to go into effect in early July. 

In his ruling, Judge Amit Mehta, of the U.S. District Court for the District of Columbia, said the agency overstepped its statutory authority in finalizing the proposal, though he didn’t weigh-in on HHS’ motives in requiring prices in ads. 

“That policy could very well be an effective tool in halting the rising cost of prescription drugs,” Mehta said. “But no matter how vexing the problem of spiraling drug costs may be, HHS cannot do more than what Congress has authorized.” 

The rule is “far afield” from other actions HHS has taken under the authority of the Social Security Act, which could have future policy implications, Mehta argued.