A Trump administration-backed rule requiring pharmaceutical companies to disclose drug prices in TV ads was blocked in federal court. Among the arguments was drug companies’ claim that the rule would violate their First Amendment rights. 

A new rule to require pharmaceutical companies to publish drug prices in their television advertising was blocked by a federal court a day before it was to take effect. President Donald Trump’s administration pushed for the rule as part of its effort to reduce prescription drug prices for U.S. consumers. 

Three drugmakers—Merck, Eli Lilly and Amgen—filed the legal challenge along with the advertising trade group the Association of National Advertisers, arguing that the rule:

  • Went beyond the authority of the U.S. Department of Health and Human Services because Congress did not authorize the requirement.
  • Would confuse consumers by forcing them to disclose a price irrelevant to patients with insurance.
  • Violated their free speech rights under the First Amendment of the U.S. Constitution.

That last argument leans on the U.S. Supreme Court ruling in the 2010 Citizens United v. FEC case. In that 5-4 decision, the court lifted restrictions on corporate political spending, calling the restrictions violations of corporations’ 1st Amendment free speech rights, enshrining constitutional rights for corporations and unleashing a wave of political spending from Super PACs and other outside groups.

A Hot Topic in Congress

The rule, which would have required ads for any medicine with a list price over $35 a month to disclose the cost during the commercial, is just one of several recent attempts on both sides of the aisle to rein in drug prices. 

Nearly a quarter of Americans say they have trouble affording the cost of their prescription drugs, according to a recent Kaiser Family Foundation poll, and nearly a third say they don’t take their medicines as prescribed because of high costs. A cross-partisan majority of Americans say drug companies should have to list prices in their ads, as proposed by the Trump administration and advocated for by consumer rights groups, and that regulations should be changed to speed access to generic drugs. 

Drug prices are a hot topic during this session of Congress, with notable bipartisan support—yet initial efforts have stalled in the face of pharmaceutical industry lobbying, according to the Center for Responsive Politics. Lawmakers are considering several pieces of legislation designed to limit rising costs: 

  • The Affordable Prescriptions for Patients Act, introduced by Sens. John Cornyn (R-Texas) and Richard Blumenthal (D-Conn.), would classify certain patent practices as anticompetitive, making it easier for the Federal Trade Commission to bring lawsuits against drug companies that try to block generic alternatives. After backlash from the pharmaceutical industry, the bill is undergoing changes in what is being called “a major victory” for the drug industry. 
  • In late May, Sens. Lamar Alexander (R-Tenn.) and Patty Murray (D-Wash.) introduced a more comprehensive bill that targets drug prices as well as other health care issues such as surprise billing.
  • In June, Reps. Hakeem Jeffries (D-N.Y.), Debbie Mucarsel-Powell (D-Fla.), Doug Collins (R-Ga.) and Ben Cline (R-Va.) introduced a bill that seeks to allow for more generic drugs by increasing the burden of proof for companies seeking additional patents on an existing medication. 

The pharmaceutical industry has long ranked among the top industries for campaign donations, with the three drug companies that filed the lawsuit among the industry’s top four political contributors for the 2017-2018 campaign cycle.

Overcoming Big Money

In ruling that corporate political spending was protected free speech in Citizens United, the Supreme Court based its decision on the assertion that corporations deserve these constitutional protections because they are assemblies of people. However, corporations typically don’t represent the opinions of all of the people who comprise them—and most Americans agree that corporations are not people.

The 28th Amendment will affirm the rights of people in our government—rather than corporations, unions, special interest groups and other big-money influences—by addressing reforms to political spending and other issues, including corporate rights, gerrymandering and term limits for Congress.

Through a constitutional amendment, Americans can strengthen our elections, prevent corruption, and ensure equal representation and political equality. Share your thoughts about what the amendment should do or say in our 28th Amendment poll