COMMITTEE SUBSTITUTE
FOR
H. B. 4372
(By Mr. Speaker, Mr. Kiss, and
Delegates Perdue, Ashley and Ross)
(Originating in the Committee on Government Organization)
[February 25, 2000]
A BILL to amend article six, chapter forty-six-a of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
one hundred eleven, relating to requiring all direct consumer
advertising for prescription drugs to include the average
wholesale price for the particular prescription drug;
legislative findings; applicability of section.
Be it enacted by the Legislature of West Virginia:
That article six, chapter forty-six-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section one
hundred eleven, to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-111. Direct consumer advertising of prescription drugs.
The Legislature finds and declares that the choice of prescription drugs should be a matter discussed between patients
and physicians free of influence by the profit motive of
pharmaceutical manufacturers; that direct consumer advertising of
prescription drugs artificially increases consumer demand for drugs
which are most profitable for pharmaceutical manufacturers to sell
when equally effective and competitively priced drugs that are not
marketed directly to the consumer are available; that direct
consumer advertising of prescription drugs increases the cost of
drugs to publicly funded programs and provides no added benefit to
the public health and welfare; and that the public interest demands
that, when prescription drugs are advertised directly to the
consumer, that the public must be provided information related to
the cost of the drug advertised. In the event of any direct
consumer advertisement of any prescription drug, the advertisement
shall prominently include the average wholesale price charged for
the prescription drug. For the purposes of this section, "direct
consumer advertisement" means an advertisement directed at
particular consumers, including, but not limited to, solicitations
by mail or telephone, distributions of handbills or flyers, radio
or television and internet postings. The provisions of this
section are applicable to any person soliciting sales of a
prescription drug to consumers located in this state by means of
advertising that is broadcast from, printed at, or distributed
from, a location in this state if the advertising is primarily intended to be disseminated to consumers located in this state and
is only secondarily or incidentally disseminated to bordering
jurisdictions. For purposes of this section, advertising which is
broadcast from a radio or television station located in this state
or is printed in or distributed by a newspaper published in this
state is rebuttably presumed to be primarily intended for
dissemination to consumers located in this state: Provided, That
the person purchasing the advertising has a physical presence in
this state in the form of employees, offices, sales
representatives, agents or sales outlets in this state, or any
other presence that provides the necessary minimum contacts for a
constitutionally sufficient nexus for state regulation.