[Congressional Record Volume 165, Number 79 (Monday, May 13, 2019)]
[Senate]
[Page S2791]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr. Grassley, Mr. King, and Mr. 
        Alexander):
  S. 1437. A bill to amend title XI of the Social Security Act to 
require that direct-to-consumer advertisements for prescription drugs 
and biological products include truthful and non-misleading pricing 
information; to the Committee on Finance.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1437

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Drug-price Transparency in 
     Communications (DTC) Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Direct-to-consumer advertising of prescription 
     pharmaceuticals is legally permitted in only 2 developed 
     countries, the United States and New Zealand.
       (2) In 2018, pharmaceutical ad spending exceeded 
     $6,046,000,000, a 4.8-percent increase over 2017, resulting 
     in the average American seeing 9 drug advertisements per day.
       (3) In 2015, pharmaceutical companies spent more than 
     $100,000,000 on advertising with respect to each of the 16 
     most advertised brand-name drugs and biological products, 
     primarily new and relatively high-cost medications.
       (4) The 10 most commonly advertised drugs have list prices 
     ranging from $535 to $11,000 per 30-day supply or usual 
     course of therapy.
       (5) According to a 2011 Congressional Budget Office report, 
     direct-to-consumer advertising is used to promote only a 
     small set of specific drugs, typically the expensive, brand-
     name medications. And the top-selling drugs in any given year 
     are frequently among the drugs with the largest expenditures 
     for direct-to-consumer advertising.
       (6) According to a 2011 Congressional Budget Office report, 
     pharmaceutical manufacturers advertise their products 
     directly to consumers in an attempt to boost demand for their 
     products and thereby raise the price that consumers are 
     willing to pay, increase the quantity of drugs sold, or 
     achieve some combination of the two.
       (7) Studies show that patients are more likely to ask their 
     doctor for a specific medication and for the doctor to write 
     a prescription for it, if a patient has seen an advertisement 
     for such medication, regardless of whether the medication is 
     clinically appropriate for the patient or whether a lower-
     cost generic may be available.
       (8) According to a 2011 Congressional Budget Office report, 
     the average number of prescriptions written for newly 
     approved brand-name drugs with direct-to-consumer advertising 
     was 9 times greater than the average number of prescriptions 
     written for newly approved brand-name drugs without direct-
     to-consumer advertising.
       (9) Approximately half of Americans have high-deductible 
     health plans, under which they often pay the list price of a 
     drug until their insurance deductible is met. All of the top 
     Medicare prescription drug plans use coinsurance rather than 
     fixed-dollar copayments for medications on nonpreferred drug 
     tiers.
       (10) The Centers for Medicare & Medicaid Services is the 
     single largest drug payer in the Nation. Drug price inflation 
     accounts for a significant portion of the 22-percent, 32-
     percent, and 42-percent growth in Medicare parts D and B and 
     Medicaid expenditures, respectively, on a per beneficiary 
     basis between 2013 and 2016.
       (11) The 20 most advertised drugs on television cost 
     Medicare and Medicaid a combined $24,000,000,000 in 2017.
       (12) Price shopping is the mark of rational economic 
     behavior, and markets operate more efficiently when consumers 
     have relevant information about a product, including its 
     price, before making an informed decision about whether to 
     buy that product.
       (13) The American Medical Association has passed 
     resolutions supporting the requirement for price transparency 
     in any direct-to-consumer advertising.
       (14) The Kaiser Family Foundation found that 88 percent of 
     the public favors the Federal Government requiring 
     prescription drug advertisements to include a statement on 
     how much the drug costs.
       (15) Pursuant to its existing authority under sections 1102 
     and 1871 of the Social Security Act, on May 10, 2019, the 
     Centers for Medicare & Medicaid Services published 
     regulations (subpart L of part 403 of title 42, Code of 
     Federal Regulations) to require direct-to-consumer television 
     advertisements of prescription drugs and biological products 
     for which payment is available through or under Medicare or 
     Medicaid to include the wholesale acquisition cost of that 
     drug or biological product.
       (16) To support the permanence and clarity of this policy, 
     and to facilitate future planning, Congress finds a benefit 
     to codifying such regulation.

     SEC. 3. REQUIREMENT THAT DIRECT-TO-CONSUMER ADVERTISEMENTS 
                   FOR PRESCRIPTION DRUGS AND BIOLOGICAL PRODUCTS 
                   INCLUDE TRUTHFUL AND NON-MISLEADING PRICING 
                   INFORMATION.

       Part A of title XI of the Social Security Act is amended by 
     adding at the end the following new section:


 ``requirement that direct-to-consumer advertisements for prescription 
   drugs and biological products include truthful and non-misleading 
                          pricing information

       ``Sec. 1150C.  (a) In General..--The Secretary shall 
     require that each direct-to-consumer advertisement for a 
     prescription drug or biological product for which payment is 
     available under title XVIII or XIX includes an appropriate 
     disclosure of truthful and non-misleading pricing information 
     with respect to the drug or product.
       ``(b) Determination by CMS.--The Secretary, acting through 
     the Administrator of the Centers for Medicare & Medicaid 
     Services, shall determine the components of the requirement 
     under subsection (a), such as the forms of advertising, the 
     manner of disclosure, the price point listing, and the price 
     information for disclosure.''.

                          ____________________