Robert F. Kennedy Jr., President-elect Donald Trump’s nominee to lead the U.S. Department of Health and Human Services (HHS) has promised to ban direct-to-consumer (DTC) advertising of pharmaceuticals — but experts disagree on whether such a ban is legally and constitutionally feasible.
At an Oct. 31 Trump campaign rally, Kennedy said, “One of the things I’m going to advise Donald Trump to do in order to correct the chronic disease epidemic is to ban pharmaceutical advertising on TV.”
According to Endpoints News, the proposal to ban direct-to-consumer DTC advertising is “gaining steam” among members of Trump’s new administration.
The U.S. and New Zealand are the only countries where prescription drugs can be directly advertised to consumers. According to Fierce Pharma “some in the biopharma industry are concerned” that the new administration may impose a ban.
A report published last month by the research firm Intron Health and cited by Fierce Pharma said Kennedy’s call to ban pharma ads is “the biggest imminent threat from RFK and the new Trump administration.”
The Senate is expected to begin confirmation hearings in January for Kennedy, who is also the founder of Children’s Health Defense (CHD).
Big Pharma using ‘back door of social media to specifically target children’
According to Endpoints News, proponents of DTC advertising claim it can help raise awareness of diseases people might not otherwise know they had — but that critics “point to studies that show the drugs promoted in newer ads are usually more expensive, and sometimes not as effective, as cheaper alternatives.”
Jeffrey Tucker, president and founder of the Brownstone Institute, told The Defender that “normally,” advertising bans would never be justified, but that pharmaceutical advertising “is a special case.”
Tucker said:
“Pharma advertising has massively distorted news coverage, essentially buying out whole networks and venues. Pharmaceutical companies are not only government-funded but the biggest among them have been indemnified against harm, which is an intolerable and non-market situation,” Tucker said.
Dr. Michelle Perro, a pediatrician, told The Defender that DTC advertising should be outlawed “not only for its unscrupulous creation of new consumers but perhaps even more importantly because it captures the media, which is then silenced from further commentary or dissension regarding Pharma products and safety issues.”
Noting that pharma advertising is increasingly visible on social media platforms, Perro said some ads specifically target children. “Due to the fact that children are more predominant users of social media, the industry utilized third-party influencers who promote and are compensated for pro-pharma indirect advertising to target our children.”
In a Nov. 19 interview with Gina Loudon, Ph.D., on “Real America’s Voice,” cardiologist Dr. Peter McCullough said, “Americans pay for the costs of all this advertising packed into the expensive, new branded drugs that come out.”
According to Endpoints News, public opinion polls show consumers are wary of pharmaceutical advertising. The news site, which covers the biopharma industry, cited a 2007 poll finding that 84% of respondents supported a ban on advertising for drugs with safety problems, and a 2016 poll finding that 57% of Americans supported banning all drug advertising on television.
Could ban on tobacco ads serve as a model for banning Pharma ads?
Public support aside, the new administration may encounter obstacles if it attempts to ban or restrict pharmaceutical advertising, “primarily in terms of the right to free speech enshrined in the First Amendment,” Fierce Pharma reported.
According to Endpoints News, “Several Supreme Court cases dating back to the 1970s have … upheld the constitutionality of advertising from most any industry.” Endpoints cited the example of Bigelow v. Virginia, a 1975 ruling that “established the precedent of protecting ‘commercial speech’ under the First Amendment.”
The Bigelow ruling was followed by 1976 and 1980 Supreme Court decisions that “cemented what became known as the ‘commercial speech doctrine.’” Under this doctrine, “Government is only allowed to impose regulations on ‘misleading’ or ‘false’ advertising.”
Speaking on Real America’s Voice, Loudon said the incoming administration might issue an executive order banning pharmaceutical advertising. But others believe a drug advertising ban would require new legislation.
“My gut tells me that it would take congressional action, which would be a tough sell because some members of Congress receive Pharma money,” California attorney Rick Jaffe told The Defender. He noted, though, that a potential model for a pharmaceutical advertising ban “might be the ban on cigarette advertising.”
Writing on his blog, Jaffe said issuing an executive order banning pharmaceutical advertising is easier said than done. “Executive orders still have to comply with the First Amendment.”
California attorney Greg Glaser told The Defender, “Courts allow reasonable restrictions on commercial speech. For example, because cigarette and alcohol ads are known to cause harm, it is well settled that federal and state laws can restrict such ads.”
According to an April 2023 William & Mary Law Review article, the 1980 Supreme Court decision — Central Hudson Gas & Electric Corporation vs. Public Service Commission — may, in fact, help facilitate such a ban.
The article states:
“The case stands for the proposition that restrictions on commercial speech should not be more extensive than necessary to further the state’s interest. Because the evidence demonstrates that DTC prescription drug advertisements are misleading … the government would be within its rights to proscribe said advertisements.”
For instance, the government could ban DTC prescription drug advertisements on the basis that they are a danger to public health and that they aren’t “speech” but rather “commercial tools,” according to the article. This strategy was used to ban cigarette advertisements under the Public Health Cigarette Smoking Act of 1969.
Jaffe said the First Amendment protects commercial speech, but only to an extent. “In the U.S., it would be very hard to have an outright ban on truthful commercial speech of an entire industry,” Jaffe wrote.
Noting that New Zealand is the only other country that allows DTC advertising of drugs, Jaffe wrote that it is “a strong rhetorical and good comparative public policy point.” But, the U.S. has “much stronger First Amendment free speech protections than most (if not all other) countries in the world,” posing a constitutional hurdle for an outright ban.
However, Jaffe argued, the incoming administration “has a big and deep toolbox” with which it can take action against pharmaceutical advertising. Such actions may include sanctioning false or misleading speech, amendment of advertising guidance documents and mandatory disclosures for media companies.
“I would like to know how much CNN receives from pharma total, what percentage of its ad revenues comes from Pharma, and maybe what they’re paying for each ad,” Jaffe wrote.
Jaffe also cited a couple other strategies the administration could use. Those include warning letters, which can’t be contested in court because they’re not “final agency actions,” and civil and criminal investigations, which could be mounted against companies that appear to violate consumer protection and other laws against false advertising.
“Pharmaceutical advertising causes harm and is routinely misleading,” Glaser said. “It has contributed to Americans paying the most healthcare costs of any country in the world, yet still ranking among the worst in healthcare.”
Glaser added:
“If Congress reins in pharmaceutical advertising, this would help HHS considerably in crafting regulations that are no more burdensome on commercial speech than necessary to advance Congressional intent.
“Big Pharma has deep pockets and is likely to wage lawfare against regulation, so a supportive Congress is especially important to ensure consistent judicial findings.”
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Drug advertising is worth between $7 billion and $19 billion
Banning pharmaceutical advertising would halt a highly lucrative industry. Endpoints News cited figures estimating that drug advertising ranged between $7 billion and $19 billion in 2023, “depending on how DTC is defined.”
According to the Intron Health report, pharmaceutical companies enjoy a return on investment of between 100% and 500% on drug advertising. As a result, drug sales will “almost certainly” be hurt by a ban.
Perro said the money pharmaceutical companies would save by not being able to advertise their products could be spent in other, more beneficial ways, “such as engaging in real research for new therapeutics, offering discounts of life-saving medications — such as EpiPens — to families with special and financial needs, and funding and creating a new division of the FDA called Drug Ethics,” Perro said.
Mark Crispin Miller, Ph.D., a professor of media studies at New York University whose research and teaching focus on propaganda, said pharmaceutical ads “idealize the product, glossing over side effects — the high-speed voice-overs at the end don’t make much difference — and create unrealistic expectations.”
Miller called this “the gravest consequence of such advertising” as it gives Big Pharma “enormous power … over the editorial content of the media.”
He added:
“Since he who pays the piper calls the tune, few outlets will dare publish content that casts a shadow on the ads, since advertisers naturally prefer what they call ‘a good environment’ — meaning content that will complement the ads, not contradict them,” Miller said.
According to Miller, drug advertising adversely affected the information the American public received during the COVID-19 pandemic.
“If it weren’t for this commercial death-grip on the press (‘Brought to you by Pfizer’), the press would not have been so avidly complicit in creating and prolonging the ‘pandemic,’ and then so disinclined to note the deadly impact of COVID ‘vaccination’ or many vaccines overall,” Miller said.
