The Health 202: Senate passage of 'gag clause' ban is just a tiny step to lowering drug prices

By:  Paulina Firozi
Washington Post

Lowering the price of prescription drugs is a popular talking point for both sides of the aisle, and a mantra for President Trump.

The Senate last night took a step in that direction by voting to eliminate "gag clauses" that pharmacists say prevent them from disclosing when there's a cheaper way to buy prescription drugs. The move allows lawmakers to claim a significant win when they go before voters in the November elections, but it's less clear how much it would move the needle in the complicated effort to lower drug prices.

Hours before the Senate vote, the issue received a major boost when President Trump tweeted about it, criticizing "gag clauses" and calling on senators to support banning them:

Prior to the final vote, the upper chamber defeated, 11 to 89, an amendment, sponsored by Lee, that would have only applied the gag rule ban to some plans that are regulated at the federal level. 

Lee's amendment would have had states take the lead on banning gag clauses. As of last month, at least 25 states had enacted their own laws addressing gag provisions, according to the National Conference of State Legislatures.

"Some have suggested that this state action and increased attention to the cost of prescription drugs has more or less solved this problem and greatly limited the use of gag clauses already," Lee said in a news release about his amendment.

"However, even if gag clauses are still in use, we must recognize that it is not the role of the federal government to regulate entities under the jurisdiction of the states. However well-intentioned, when Congress oversteps its authority like this, we usually end up doing more harm than good."

Some industry experts say lifting gag clauses is just a small step to getting Americans lower prices for their medicine because, while it increases transparency, it doesn't address the underlying issue of actual drug costs. 

“This is an important but incremental step,” said Lauren Blair,  spokeswoman for the Campaign for Sustainable Rx Pricing. “This is certainly progress but there’s a lot more work to be done, both in the transparency bucket specifically, and broadly in the larger effort to tackle drug prices. And again, transparency is not enough to tackle outrageous drug prices.”

Blair added transparency should be paired with additional efforts to address prescription prices, such as allowing for opportunities to increase competition in the drug marketplace to create more affordable options.

A similar measure to ban the practice passed the House Energy and Commerce Committee last week.

In a statement to The Health 202, bill sponsor Rep. Earl L. “Buddy” Carter (R-Ga.) applauded the passage of the Senate's version and urged a full House vote soon on his bill. 

"As a pharmacist for more than 30 years, gag clauses prohibited me from telling my patients about a better option for them many times," he said. "I know how important it is for patients that we end this unfair practice and I am thankful my colleagues in the Senate realize the critical need as well."

Lifting the ban was part of the White House blueprint on lowering drug prices. In May, when announcing the plan, President Trump called PBMs “dishonest, double-dealing” middleman, and singled out gag rules, calling them a "total rip-off," and said he wanted to eliminate them.

If the legislation makes it to Trump's desk, it's just one narrow slice of a massive undertaking to lower the skyrocketing cost of prescription drugs. 

Lawmakers may hope passing the bill will give them bragging rights on the campaign trail. But most Americans are cynical about any real change emerging from  this or any other proposed policy changes. In a July poll from Politico-Harvard, 81 percent favored eliminating the gag clause clauses, but only 42 percent believed it would result in lower drug prices. 

Moreover, 57 percent didn't believe Trump's plan would make a difference in what their family pays for prescription drugs, while 22 percent thought they would spend less on their medicines and 13 percent believed they would spend more. 

Blair said the bill's passage is heartening because it shows Republicans and Democrats, as well as the White House, are "rallying behind the issue." 

"Not everybody will agree on every solution, but everyone is acknowledging there’s a problem," she said. "This is a prime example of the fact that people are getting on the same page on the solution... Bills like this make it clear, it doesn’t matter what side of the aisle you’re on, we need to advance solutions."