Does the drug companies' argument that compelling speech is unconstitutional hold any water?

As you’ve probably heard, the Trump administration would like to require that drug ads include the per month cost of all drugs that are over $35/month absent rebates, drug price negotiations with one’s insurance company etc.

The drug companies are already insisting that compelling them to say something would be unconstitutional and in violation of their first amendment rights.

Does this argument hold any water? It seems to me that the government already compels speech in multiple arenas, such as:
[li]By requiring politicians to say that the messages in their political ads are their words[/li][li]By requiring alcohol and tobacco products carry health warnings[/li][li]By requiring banks to give whatever rapid spiel it is at the end of banking ads (FDIC?)[/li][li]By requiring foods to give ingredient and calorie information[/li][li]By requiring these same drug companies to include side-effect information in the same ads[/li][/ul]

They also don’t allow diet supplements to make unverified claims, though I guess that’s more in the nature of compelling you *not *to say something.

And moreover, the government is apparently allowed to disallow TV ads at all without violating the constitution like they already have tobacco so it seems like the US (and perhaps New Zealand) could instead double down and join the rest of the world in banning direct-to-consumer drug ads all together.

So are their valid arguments that this be unconstitutional when the above list isn’t? Or have those things just not been challenged on constitutionality?

You’re right that the drug companies’ odds of prevailing are slim. Sometimes legal challenges are an intimidation, negotiation or stalling tactic. And some people squirt ink/words for the same reasons squids do, a phenomenon the Trump administration may already be familiar with.

I don’t see anywhere that the government makes any requirements that such companies produce any advertising whatsoever, and I would be surprised if a law exists that makes it illegal for a company to not advertise.

So the claim that any speech is being compelled here is obvious nonsense on its face. If they were to claim that a particular form of speech is not being allowed I would think they had a point, but as phrased here it’s nonsense.

Some of the items mentioned in the OP (health warnings, side-effect warnings, maybe bank info) are not required by the government, but done by the companies as a way to make it harder for people to sue them for misdeeds.

It’s much harder to win a lawsuit against cigarette companies for addicting you when there is a warning printed on every pack.

So it’s not the government requiring them; it’s the companies own legal departments.

Not so.




Unfortunately, I don’t have time to look up banking or side-effects tonight.

I think the term “obvious nonsense” is the perfect descriptor of the drug companies’ complaints.

The fact that these same companies are already required to mention a laundry list of unpleasant side effects in these ads suggests that ‘compelled speech’ is something they are comfortable with.

If your ad doesn’t include X, you can be prosecuted. That is absolutely a form of compelled speech. As are labeling requirements. However, IIRC, the courts have generally found that compelling the inclusion of “purely factual and uncontroversial information” is acceptable.

So is this compelled speech? Yes.
Does this being compelled speech make the requirement unconstitutional? Until someone who knows more comes along, probably not.

OP doesn’t ask whether it’s just and proper, so I’ll leave it at that

Here is a comprehensive look at drug advertising’s history.

I think it’s fair to say that the presence of calorie count, sugar content, fat content, etc. are all printed on every item of food in the supermarket gives pretty clear indication that the government can force you to put factual information about your product on the packaging. See also the Surgeon General’s warning on cigarettes.

Their case hasn’t a shot in hell of succeeding unless the current Supreme Court decides to abandon several decades worth of history and, I presume, legal cases.

for those that don’t know only the US and New Zealand allow direct drug ads to consumers. All other places only allow ads to doctors such as in medical journals.

Compelling drug companies to provide pricing information is qualitatively different from compelling them to provide health warnings. The latter is justified by the government’s compelling interest in drug safety. Drug pricing is not (except indirectly) a safety issue, and the government interest is less compelling. The $35 cutoff also seems a bit arbitrary; if the government interest at issue is transparency in drug pricing, it’s hard to argue that it shouldn’t be requiring “price warnings” for all drugs.

Perhaps a more effective argument - at least with regard to the proposed policy - is that the FDA lacks statutory authority to mandate price information in advertising (because the Food and Drug Act doesn’t mention it).

I think this is correct. The drug companies do not publish the cost of their products because they make deals with the insurance companies (rebates), and these deals are not public knowledge, and costs will vary depending on the deal. They cannot tell you how much it will cost YOU, unlike when you see a advertisement on TV for a car, for example. If you want to know how much a drug is going to cost YOU, you need to make a Dr appt and ask them to prescribe it to you, which is exactly what he drug companies want from their adverts.

So, if the government wants to compel drug companies to say how much their products costs in their DTC advertisements, it will also have to force them to become more transparent with their costs to produce and sell the product. Good luck with that.

I know this kinda gets away from the spirit of what you were saying, but I want to mention that you can probably call your insurance company directly and get the cost of a med. With (at least for me) United Healthcare, you can get your cost right on their site. It’ll tell you how much you’ll pay direct from them and at a handful of local pharmacies.
I also always recommend people go to goodrx . com. Punch in your drug of choice there and you can show that to the pharmacy and pay that amount.

There have been plenty of times where I was going to swtich meds and before I went to the dr’s office, I priced them out. Luckily, my doc is happy to work with me so it’s nice when she recommends one and I can show her that it’s $300/mo, but this other one is $9…can we try that one first?

If your pharmacist is willing to work with you on this, they will sometimes run a test script through their system (and your insurance) to get you a cost as well.

Commercial speech has nowhere near the same first amendment protections that ordinary speech does and governments compel that speech all the time (e.g. labeling requirements).

The linked story gets more complex with the addition of Central Hudson Gas & Electric v. PSC of New York (1980) which bears on this as well but the article thinks the two live with each other just fine. The short, version, near as I can tell, is whether the compelled speech is there to prevent deception or not. Not sure if deception is what this aims to stop. Still, the government gets a good deal of leeway on this it looks like.

Well, I may be alone in this, but I’m a person who cares more than just what may come out of my pocket for a particular drug.

For example, I just got a prescription for full strength Prilosec because I get some nasty heartburn every now and then. I come to find out that the prescription strength is just twice the dose of OTC, as far as I can tell. The OTC may cost something like 20 bucks, so double that and its $40. The prescription strength costs me $5. I win, right?

Fuck that. The insurance company is apparently being charged something like $110 for this. So the drug company rakes in $115 because insurance is paying for it, instead of $40 for me paying for it.

Ok, so this isn’t cancer medication and it doesn’t cost thousands of dollars. But if I knew for an instant that my doctor was recommending something that is just making drug companies richer, I’d tell her to save the work and I’ll just pick up two boxes at Safeway this weekend.

Even more insidious, drug companies will often have a coupon available for a drug, which they give to consumers, so that when the consumer get that manufacturer’s drug, they pay nearly nothing up front, but then their insurance company foots the balance of the cost. Another way to manipulate people to use their product over less expensive alternates. The good news, recently the pharmacist gag rule has been banned, so your pharmacist can now openly recommend the lowest cost drug for you, sometimes without using your insurance. Previously, they were not allowed to do that.

Joey P is correct, there are other ways to learn how much a drug will cost you. calling your insurance company is the best way. But who does that?

Anyway, back to drug companies and their ads.

I find GoodRx to be an easy to use source to find drug prices.

The cost difference is largely down to the different compliance requirements, as well as the costs associated with pharmacy dispensing that don’t apply to over-the-counter dispensing (and to agree, the greater liability associated with greater dosage). It’s not the drug company screwing your insurer; it’s the difference between a heavily regulated product and an incredibly heavily regulated product, plus economy of scale (Proctor & Gamble probably sell 50 OTC Prilosec pills for every 1 prescription Prilosec pill).