Back-Door FDA Drug Ad Ban Makes Paternalism Great Again

The Make America Healthy Again movement led by President Trump and Secretary of the Department of Health and Human Services Robert F. Kennedy, Jr., has shaken up the traditional government approach to public health by seeking to empower consumers to make better choices concerning their own health and putting responsibility for treatment decisions back in the hands of patients and their doctors rather than the nanny-state “bureaucrats know best” approach that reached its apotheosis during the Covid fiasco. But the Food and Drug Administration (FDA) is advancing a new rule, Transparency in Direct-to-Consumer Advertising, that contradicts MAHA’s core commitment to providing consumers with better information to make informed choices about their treatments with their doctors. And with Democrats poised to control both chambers of Congress and a wave of Democratic Socialists on the way, the rule would give the new majority a template for going after the commercial speech of lawful industries it disfavors. The rule, which is still in the early stages, would upend the way prescription drugs have been advertised for nearly three decades. Prior to 1997, the FDA had required drug advertisements, which mostly ran in magazines, to include the full list of possible side effects and warnings. Recognizing the need to modernize for television, the FDA introduced its “adequate provision” standard, allowing drug makers to recite the most important risks on air while directing viewers to a toll-free number or website for the full prescribing information. The FDA’s impending rule would eliminate that long-standing option, mandating drug makers to recite the far denser list of all possible risks during every commercial. This will lead to commercials becoming so long that they become cost-prohibitive, amounting to a ban in practice. As the FDA concedes, it would cause “a decrease or cessation of product advertising.” And even if they did air, spots would become cluttered with far too much confusing medical jargon to be of practical value to consumers. That outcome appears to be the point, as Health and Human Services Secretary Robert F. Kennedy Jr. has previously called for an outright ban on drug ads. Similarly, DSA favorites like Sen. Bernie Sanders and Rep. Ilhan Omar have introduced legislation to ban drug advertisements from all mediums. And while plenty of viewers, myself included, at times find these commercials annoying—the result of this rule would have damaging consequences for patient access to information and the First Amendment. Fifty years ago in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Supreme Court recognized that “commercial speech” is protected by the First Amendment and that for many people the “interest in the free flow of commercial information… may be as keen, if not keener by far, than his interest in the day’s most urgent political debate,” especially for poorer, sick, less-educated, and older Americans for whom television commercials and other advertisements may be the most efficacious way to learn about new treatments. As a result, sellers have a right to provide truthful information and consumers have the right to receive truthful information about products. Consider a person with undiagnosed heart failure dismissing extreme fatigue, indigestion, and swollen ankles as signs of stress or just growing older. After watching a commercial about a treatment for heart failure, that person is prompted to make an appointment with a doctor to discuss their symptoms. Conversations like that are common and at times result in a doctor identifying a serious underlying condition. According to a national survey conducted by the FDA, more than a quarter of respondents claimed drug commercials led them to consult their doctor about potential medical conditions or illnesses. If anything was learned from the Biden administration’s handling of Covid, it’s that Americans, particularly conservatives, should be wary of government censoring or limiting access to accurate and lawful information relevant to our health. Senior White House officials spent months pressuring Big Tech companies to censor discussion of the Covid virus and criticism of lockdowns and vaccines, resulting in the removal of millions of posts. Those now leading our nation’s health agencies experienced this firsthand. Dr. Jay Bhattacharya, now director of the National Institutes of Health and acting director of CDC, sued the Biden administration over its pressure campaign after Twitter blacklisted him and censored his posts. Secretary Kennedy, who was banned from Instagram, also sued over Covid censorship. Just this year, President Trump’s Department of Justice settled both lawsuits, proclaiming the settlements as “key steps in undoing those abuses of the First Amendment.” After witnessing what happens when the government interjects in what health information is acceptable for Americans to receive, the Trump administration should be the last to introduce a rule that accomplishes the same through regulation. And whatever power this rule claims will pass to whoever comes next. With Democrats taking Congress and a new bloc of Democratic Socialists eager to target industries they oppose, the FDA would be handing them a precedent ready to use against energy producers, firearms makers, and beyond. MAHA leaders should remember the remonstrance of the Supreme Court’s observation in Virginia Pharmacy Board, “There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them.” The author is a law professor at Antonin Scalia Law School, George Mason University and the Co-Director of the Institute for Consumer Financial Choice. From 2003-04 he served as Director of the Office of Policy Planning at the Federal Trade Commission.