Jason Parish, shareholder in the firm's Litigation section, comments on flaws in HHS' rule requiring manufacturers to list prices in consumer ads and its enforcement in "Legal Experts Say HHS Rule Requiring Drug Prices in TV Ads Lacks Teeth," published by S&P Global Market Intelligence.

Generally, government rules are established in a way that gives agencies, like HHS or the Department of Justice, the ability to take actions, said Washington lawyer Jason Parish, a shareholder and a member of the litigation section at Buchanan Ingersoll and Rooney PC.

But HHS' rule requiring list prices in consumer ads fails to do that, Parish told S&P Global Market Intelligence.

The biggest question in enforcing the rule is whether any companies will bother to file Lanham Act lawsuits, he said.

"Is Merck or any company going to go to the trouble of monitoring the ads, getting counsel and spending the money to go out and bring Lanham Act litigation against their competitors," he said. "That's not the way these companies operate."

If HHS really wanted its rule to have teeth, it would have used a stronger enforcement mechanism, like monetary penalties, and allowed consumer and patient advocacy groups to bring legal actions against companies that violate the requirement, Parish said.