'CMS ... does not regulate exercise.'
An appeals court in Washington heard oral arguments on Monday in the ongoing dispute between drug makers and the Trump administration over whether the government can force drug makers to include sticker prices in their TV ads for medicines. And as you can tell from that headline, the government lawyer was facing a serious uphill battle.
The Trump administration has argued it can force the disclosures because it's tasked with the “efficient administration” of Medicare and Medicaid, which they argue become more efficient when consumers can shop around for drugs.
But lawyers for the drug makers Merck, Eli Lilly and Amgen, shot back, chiding the government for vastly overstepping its constitutional authority. “Presumably it would make Medicare and Medicaid more efficient if the secretary could require beneficiaries to do some exercise,” Richard Bress, who is a partner at Latham & Watkins, said.
A three-judge panel didn’t seem to be buying the government’s argument either. The government’s lawyer, Ethan Davis, faced skeptical questions from the judges, who seemed to accept drug makers’ arguments that patients rarely pay a drug’s list price, and therefore that price isn’t meaningful to them.
“Is there any economist that says price transparency that is not the price people will pay improves efficiency?” Judge Patricia Millett asked. “You call it the list price, people think that means something, but I don't think it does in this context.”
The Trump administration has argued it can force the disclosures because it's tasked with the “efficient administration” of Medicare and Medicaid, which they argue become more efficient when consumers can shop around for drugs.
But lawyers for the drug makers Merck, Eli Lilly and Amgen, shot back, chiding the government for vastly overstepping its constitutional authority. “Presumably it would make Medicare and Medicaid more efficient if the secretary could require beneficiaries to do some exercise,” Richard Bress, who is a partner at Latham & Watkins, said.
A three-judge panel didn’t seem to be buying the government’s argument either. The government’s lawyer, Ethan Davis, faced skeptical questions from the judges, who seemed to accept drug makers’ arguments that patients rarely pay a drug’s list price, and therefore that price isn’t meaningful to them.
“Is there any economist that says price transparency that is not the price people will pay improves efficiency?” Judge Patricia Millett asked. “You call it the list price, people think that means something, but I don't think it does in this context.”
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