By Naomi Lopez Bauman & Timothy Sandefur
Thursday, May 23, 2019
There’s strong bipartisan support today for doing
something about prescription-drug costs. Unfortunately, a deceptively simple
new regulation that the Trump administration rolled out earlier this month will
likely make things worse.
Beginning this summer, drugmakers will be required to
state the prices for their medicines in all direct-to-consumer TV
advertisements — an idea that sounds wise, until you learn that in practice,
the information provided is meaningless at best and inaccurate at worst.
The rule requires drug manufacturers participating in
Medicare and Medicaid to disclose the “wholesale list price” of either a 30-day
or “typical” regimen whenever they run television ads for their medicines
(unless that price is under $35). The price will be followed by the statement
“if you have health insurance that covers drugs, your cost may be different.”
The problem is that drug manufacturers do not set the
prices consumers pay. Instead, middlemen buy these drugs in bulk with discounts
and rebates. These middlemen then sell to retailers, with another round of
rebates and reductions. As a result the “wholesale list price” that the
regulation forces manufacturers to provide in their ads doesn’t actually exist.
And when it comes to insurance plans, “your cost may be
different” is an understatement. What patients end up paying often has more to
do with what kind of prescription-drug coverage they hold than with anything
else. An insurance plan requiring a co-pay for the drug will result in one
price, one with a high deductible but a negotiated discount will result in another
figure, and the customer whose plan includes no drug coverage will pay still a
different amount.
Worse still, the regulation defines “wholesale list
price” in a way that contradicts existing law. A decade ago, a federal court
defined that term as meaning “the amount that goods actually cost,” with all
applicable discounts and rebates factored in. But the administration’s proposal
specifically forbids advertisers from factoring in any discounts or rebates.
And the regulation doesn’t specify what a “typical regimen” of a drug is. Every
patient, of course, is different — and it’s impossible to guess what federal
bureaucrats will consider “typical.”
The bottom line is simple: The disclosure of the
manufacturer’s “list price” is meaningless. Worse, it’s likely to be
drastically misleading.
Imagine an advertisement that says, “The list price for
typical course of treatment with Drug X is $500. If you have health insurance
that covers drugs, your cost may be different” — which is the language the
regulation requires ads to use. A patient planning to pay cash would believe
his price to be $500, even though, after rebates and discounts, his pharmacy
might charge only $300. Even a patient with insurance might not realize how
drastic the difference could be; perhaps she would owe only a $40 co-pay.
For this reason, the regulation is also vulnerable to a
constitutional challenge. Courts have held that the government may force
businesses to disclose true information about products, but the First Amendment
prohibits the government from forcing them to state untrue or misleading
information.
Patients would certainly be better served by better
information, and our health-care system often falls woefully short on that
front. But a rule requiring disclosure of mythical prices won’t improve patient
outcomes or make drug treatments more affordable. The real danger is that it
will result in greater confusion or even discourage patients from seeking care
altogether.
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