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HHS Sec. Alex Azar and President Donald Trump talk about reducing drug costs. (Photo: Nicholas Kamm/AFP/Getty Images)

The Trump administration's newly finalized rules requiring drugmakers to include prices in their TV ads could spark a flurry of lawsuits — first to challenge the rules, and then to enforce them.

Between the lines: If the rule survives the legal challenges that may be coming its way, there are still plenty of questions about whether it'll actually help lower drug prices.

The big picture: The rule requires TV ads for most drugs to disclose their list prices, along with a statement that each patient's costs may depend on their insurance. (Here's what that looks like in practice.)

What they're saying: “We believe there are operational challenges...and think the final rule raises First Amendment and statutory concerns," the industry trade group PhRMA said in a statement yesterday.

  • The Advertising Coalition — which includes advertisers and broadcasters — also wrote in public comments that "the proposed regulation is a form of compelled speech prohibited by the First Amendment."
  • “There are plenty of potential challengers out there who could reasonably assert that they’d be damaged by implementation of the rule," Manatt Health's Ian Spatz said.

Yes, but: In the scheme of things, this isn't the biggest threat facing drugmakers right now.

  • "Sure, drug companies would prefer not to post their list prices. But everyone seems to agree that the rule won't accomplish much, so is it really worth the hassle of a lawsuit?" University of Michigan law professor Nicholas Bagley said. "PhRMA might save its powder for fights that matter more."

What's next: The regulation also relies on lawsuits to ensure compliance.

  • The federal government will keep a list of drugs whose ads violate the rule. Those manufacturers would then face the threat of lawsuits from their competitors.
  • "The big companies may be unlikely to sue one another under this provision, but smaller companies could sue bigger ones, or generic makers might bring actions for noncompliance," said former FDA Commissioner Scott Gottlieb.
  • But there's some skepticism that this is a workable enforcement mechanism.
  • "I think it's highly unlikely, 1) that competitors would be interested in doing this, and 2) that they’d have the ability to prove any competitive harm," Spatz said.

Go deeper

Justice Department drops insider trading inquiry against Sen. Richard Burr

Sen. Richard Burr (R-N.C.) walking through the Senate Subway in the U.S. Capitol in December 2020. Photo: Stefani Reynolds/Getty Images

The Department of Justice told Sen. Richard Burr (R-N.C.) on Tuesday that it will not move forward with insider trading charges against him.

Why it matters: The decision, first reported by the New York Times, effectively ends the DOJ's investigation into the senator's stock sell-off that occurred after multiple lawmakers were briefed about the coronavirus' potential economic toll. Burr subsequently stepped down as chair of the Senate Intelligence Committee.

Netflix tops 200 million global subscribers

Illustration: Rebecca Zisser/Axios

Netflix said that it added another 8.5 million global subscribers last quarter, bringing its total number of paid subscribers globally to more than 200 million.

The big picture: Positive fourth-quarter results show Netflix's resiliency, despite increased competition and pandemic-related production headwinds.

Janet Yellen plays down debt, tax hike concerns in confirmation hearing

Treasury Secretary nominee Janet Yellen at an event in December. Photo: Alex Wong via Getty Images

Janet Yellen, Biden's pick to lead the Treasury Department, pushed back against two key concerns from Republican senators at her confirmation hearing on Tuesday: the country's debt and the incoming administration's plans to eventually raise taxes.

Driving the news: Yellen — who's expected to win confirmation — said spending big now will prevent the U.S. from having to dig out of a deeper hole later. She also said the Biden administration's priority right now is coronavirus relief, not raising taxes.