Lawmakers target prescription drug advertising, ‘enforcement gaps’ against surprise billing

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Prescription drug advertising and patient financial protection are the heart of two bills that have the support of physicians in Congress.

The End Prescription Drug Ads Now Act would impose a nationwide ban on prescription drug advertising in all forms. Other legislation, the No Surprises Enforcement Act, would toughen federal actions to ensure patients do not face unexpected medical bills, as outlined in the 2020 No Surprises Act.

The bills were announced this week by their respective sponsors, which include some of the doctors serving in the House of Representatives and Senate.

No more ‘ask your doctor’?

The End Prescription Drug Ads Now Act would bar pharmaceutical companies from touting their medicines via “any promotional communication targeting consumers.” That includes television, radio, print, digital and social media.

“Prescription drug ads increase drug costs and mislead patients,” said the announcement by Rep. Jerry Nadler (D-New York). He is cosponsor with Rep. Maxine Dexter, MD (D-Oregon). and Rep. Ilhan Omar (D-Minnesota).

“I have spent my career delivering life-saving care to people in moments of crisis as well as those with chronic conditions,” Dexter said in the news release. “Big Pharma spending billions on direct-to-consumer ads makes needed medications more expensive and erodes trust in the healthcare system. It is unethical and must be stopped. This legislation is an important step toward ensuring medical decisions are made between patients and their doctors, not by Big Pharma’s marketing machine.”

The representatives said in 2024, the nation’s top 10 drug companies profited more than $100 million while spending more than $10 billion on television ads. This year, Big Pharma spent more than $1 million for direct-to-consumer ads for 10 drugs, and prescription drug ads now make up more than 30% of commercial time on evening news programs on major television networks. The United States is just one of two countries worldwide that allow direct-to-consumer pharmaceutical advertising.

The representatives said the American Medical Association endorsed a ban 10 years ago and other health-related organizations support it. They listed proponents: Jacobs Institute of Women's Health, MedShadow, National Center for Health Research, Our Bodies Ourselves, TMJ Association, USA Patient Network, Washington Alliance for Patient Safety, and WoodyMatters.

It was unclear whether the legislation might spur bipartisan support. Health and Human Services Secretary Robert F. Kennedy, Jr., has publicly stated his desire to stop pharmaceutical advertising, arguing that numerous ads telling patients to “ask your doctor about” medicines have led to over-consumption of drugs. This Politico report also noted any potential ban would almost certainly prompt legal challenges based on First Amendment freedom of speech.

No surprises, and we mean it

Meanwhile, the No Surprises Enforcement Act was introduced to beef up the No Surprises Act that took effect in 2020. Rep. Greg Murphy, MD (R-North Carolina) announced the bill with support from congressional physicians Sen. Roger “Doc” Marshall, MD (R-Kansas), Rep. John Joyce, MD (R-Pennsylvania), Rep. Raul Ruiz, MD (D-California), Rep. Bob Onder, MD (R-Missouri), and Rep. Kim Schrier, MD (D-Washington). Additional sponsors are Sen. Michael Bennet (D-Colorado) and Rep. Jimmy Panetta (D-California).

"Nearly five years ago, the bipartisan No Surprises Act was signed into law to eliminate surprise medical billing," Murphy said in a news release. "Although this historic legislation became law, big insurance companies have not been held accountable for paying what they owe. My bill cracks down on those that are willfully defying the law and doubles down on protecting patients. I am grateful for the continued bipartisan support to put patients first and prevent Americans from being crushed by medical debt from surprise billing."

Taking effect?

In 2020, President Donald J. Trump signed into law the bipartisan, bicameral No Surprises Act.

“The law aims to protect patients from unexpected out-of-network ‘surprise’ medical bills and established the framework for an effective and balanced independent dispute resolution process (IDR),” Murphy’s announcement said. “However, this balanced framework is not being effectuated as Congress intended.”

Murphy said the new legislation will bolster the No Surprises Act by:

• Closing enforcement gaps through increased penalties for non-compliance of statutory payment deadlines.
• Providing parity between penalties imposed against parties non-compliant with statutory patient protection provisions.

Still some surprises

The No Surprises Act originally had backing of the American Medical Association and the American Hospital Association. But they and the Texas Medical Association challenged implementation rules promulgated under the administration of President Joe Biden.

When the law took effect, federal analysts estimated there could be 17,000 clams a year going through the law’s independent dispute resolution process. But in June 2022, AHIP, the trade association for America’s health insurance payers, and the Blue Cross Blue Shield Association shocked the health care sector with a survey that estimated more than 2 million surprise medical bills for the first two months of 2022.

It appeared the law, and clarification of the dispute resolution process, may have slowed down the volume of surprise billing disputes. There were more than 1.24 million surprise billing disputes in the federal resolution process from the first quarter of 2023 to the second quarter of 2024, according to “The performance of the federal independent dispute resolution process through mid-2024,” a May analysis by the Peterson-KFF Health System Tracker.