Amgen Inc., Eli Lilly and Co. and Merck & Co. Inc., along with the Association of National Advertisers, filed a brief Wednesday with the U.S. Court of Appeals for the District of Columbia asking it to uphold a lower court decision that struck down a Health and Human Services rule requiring prescription drug companies to include the list price of their product in television ads. Describing the rule as "a case of 'agency action in search of a statutory home,'" the brief raises both HHS' lack of statutory authority to impose the requirement and constitutional issues. The brief also noted that HHS has acknowledged that its compelled disclosure of a list price that doesn't reflect what most people would have to pay would confuse and intimidate patients, perhaps deterring them from using beneficial drugs. HHS also recognized that the potential consequences over the long term could be increased overall health care costs, according to the brief.

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