Does Restricting Pharma Advertising Violate the First Amendment?

Commentary

FDA Commissioner Dr. Marty Makary has announced new federal expectations for pharmaceutical ads on television and other media. They will face a greater obligation to list side effects and downsides of the drugs. They can no longer just mention a few and move on. We are going back to the old law that demands more disclosure of the downside.

“It used to be that the F.D.A. properly enforced the regulations governing pharmaceutical ads and, as a result, pharmaceutical ads were rare,” he wrote in The New York Times. “But over time, the F.D.A. has become too lax. In the past, the F.D.A. office charged with overseeing drug advertising sent more than 100 warning letters to pharmaceutical companies each year. But those numbers have dwindled. In 2023, the F.D.A. sent just one warning letter. And last year, it sent zero.”

Further: “Until 1997, pharmaceutical ads were required to report full contraindications and common precautions in advertisements. During this time, pharmaceutical broadcast ads were relatively rare because of the time it would take to read safety information. Since 1997, pharmaceutical companies have used what is known as the adequate provision loophole to include safety information in a website link or phone number. In this period there was an explosion of broadcast ads without full patient disclosures, which has led to negative ramifications for Americans’ health.”

It’s true that new obligations could dramatically reduce the number of ads that air, simply because no ad can be long enough to list all the necessary warnings. That alone should tell you something.

I do not recall that in the 1990s, there were common complaints that such expectations violated the First Amendment. But with evidence that the explosion in drug ads has contributed to a health crisis, and the move to reimpose the old restrictions, we are suddenly hearing about the Bill of Rights and free speech.

The WSJ says it plainly: “What’s really going on here is an effort to use government regulation to ban advertising for pharmaceuticals. This is a longtime project of the political left and Mr. Kennedy. But because this would violate the First Amendment, he’s trying to do it by the back door.”

Let’s leave aside the problems of the conflict of interest. Clearly major media venues are heavily funded by pharma ads, as even a quick look revealed. There are times when I’m watching some streaming service with ads and find myself overwhelmed by the sheer number of cures being hawked on the airwaves.

Consumers have no idea if they work and very little notion of the implications of the side effects. This is particularly alarming when it comes to psychiatric drugs that promise to end anxiety, depression, and disorientation generally. Anyone can click a few buttons and meet a prescriber online and get a med delivered the next day.

With so many media venues dependent on pharma dollars, this poses a serious problem. It also affects the coverage of hugely important topics such as vaccine mandates and the new policies at Health and Human Services. You have surely noted the lack of balance in the coverage of Health Secretary Robert F. Kennedy Jr. It is not a “conspiracy theory” to observe that these venues are concerned mostly about losing advertising dollars.

At the same time, what can we say about this concern over the First Amendment? From the time of the invention and distribution of the radio, federal regulators have taken a strong interest in the content of the public airways. When the radio was broadly replaced by the television, the Federal Communications Commission was born. We’ve lived for many decades with restrictions of various sorts.

Even now, you cannot advertise liquor, wine, or beer with any signs of excess consumption, nor can the ads include anyone under the drinking age. Industry standards are even more strict and generally forbid showing any actual consumption.

As for cigarettes and other tobacco products, they are banned completely. No form of promotion can exist in any venue under any circumstances. The same laws require extremely strict warnings even on the products themselves. These restrictions have all been upheld by the courts and are generally unquestioned.

Think about the strange irony here. You cannot drink beer on a TV ad. You cannot swill a martini. You cannot have a cigarette or promote cigars or pipes. That is accepted and generally agreed upon. There are no real litigation challenges to this. But at the same time, giant companies can push drugs that perform chemical lobotomies, electroshock therapy, and even lead young people into a state of sedation that affects brain development for life.

Is it any wonder there are profound questions about this? Keep in mind that all the drugs advertised on television enjoy the label of generally safe and effective as conferred by federal authorities, even if that designation is sketchy.

Generally, medical and financial services face huge restrictions. Not anyone can get on TV and push some medical treatment, however sincerely. You can go to jail for that. It’s the same with financial services. A huge range of restrictions apply to that, all in the interest of protecting the public from ripoffs, charlatans, and frauds. Giving investment advice is a no-go.

No one seems to have a problem with that. All these sectors are heavily policed by federal regulators, the industry, and by the newspapers and TV stations. The lawyers carefully vet every ad to make sure it is not in violation of some federal statute or industry standard.

It seems like the pharmaceutical industry is the only one that is permitted a free-for-all. This leads consumers to believe that surely the product is safe, effective, and good overall, else it would not be permitted to be on television. This is a huge problem.

All those maudlin complaints about the First Amendment simply do not pertain. If you want to be the person who says that radio and TV should run hard-core adult content, push cocaine and LSD, and show how you can mainline tequila for the perfect drug-induced delirium, be my guest.

Cite the First Amendment if you want. But not many are going to be persuaded. These are public airways and, by tradition and cultural expectation, they are regulated by law in every country in the world. It makes zero sense that the one great exception would be pharmaceutical advertising in the United States (one of only two countries that allows it at all).

What about the complaint that these new regulations impede market functioning? Go back to basics here and ask: What is the market? It is not the environment in which producers can sell anything to unsuspecting buyers with zero accountability for the results. This is corporatism.

A genuine free market is a network of accountability. You cannot rob people blind, hurt them physically and mentally, and lie with impunity. In the real free market, producers reap what they sow—good and bad—and cannot rely on government cover to avoid the consequences of their actions.

What Makary and Kennedy are proposing is neither radical nor new. It is a restoration of the status quo ante, before pharma gained so much industrial power to addict a nation, control politics, and dictate editorial content.

Restricting the advertising of these companies will certainly have a short-term impact on the media industry’s bottom line. But as with alcohol and tobacco, the media can adjust. If there are mega-profits to flow to Big Pharma, it has to happen in the way it did before 1997: with full disclosure and some exercise of corporate responsibility.

If the courts are called up to speak on this topic, we can fairly predict where they will land. The pharmaceutical industry needs to find another way to win friends and influence people.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.