On December 17, 2019, WLF urged the Centers for Medicare and Medicaid Services (CMS) to withdraw a proposed rule that would require drug makers to convey the wholesale acquisition cost, or “list price,” of any prescription drug advertised in direct-to-consumer (DTC) television ads. As WLF’s comment makes clear, no matter how well-meaning its intentions, CMS may exercise only the limited regulatory authority that Congress granted to it by statute. Yet no statute authorizes CMS to require disclosure of list prices in DTC television ads. WLF’s comment also shows that CMS’s list-price disclosure mandate would violate drug makers’ First Amendment right to speak truthfully about their products. Under Supreme Court precedent, CMS’s proposed rule violates the First Amendment unless CMS can show that the rule (1) “directly advances” CMS’s substantial interest in reducing costs and (2) is no “more extensive than is necessary to serve that interest.” As WLF’s comment demonstrates at length, the proposed rule flunks both of those requirements. In light of these deficiencies, WLF has asked CMS to withdraw the proposed rule in its entirety.
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