One of the things the new administration may try to do is eliminate Pharma advertising in the media. Like many, I think Pharma’s advertising has adversely impacted the public dialogue and public health.

More bluntly, the media is Pharma’s paid shill and mouthpiece, and it has hurt the country.

More specifically, the media’s megaphone for Pharma is one of the reasons that on just about every important health metric, we are in the middle or bottom half of first world countries. If it could, the FCC should force most media news programing on health to contain a black box warning that “consumption of this product may be dangerous to your health.” OK, a slight exaggeration, so maybe delete the black box around the warning, but you get the point and my point of view.

In 2022, Pharma’s payoffs to the media (aka advertising disbursements) amounted to (by one estimate) 7.6 billion dollars. Pharma wouldn’t be spending all that money if it didn’t think it was worth it, both in terms of sales, and influence in the payees/media.

I don’t like it, and that is my bias. But I am a lawyer with some First Amendment experience, and that experience gives me some pause about trying to eliminate Pharma advertising.

Further, given all the payoffs, neither Pharma nor its media mouthpieces are going to lay down and let the government bar Pharma advertising without a multi-front attack, starting with Congress, and in the very same media which is receiving these payoffs.

Throw into the mix that I am an anti-government guerrilla lawyer, plus the fact that a mantra behind the election is less government regulation and more freedom. And, we are supposedly in a post-Chevron administrative world where the courts no long give deference to administrative agencies, especially when an agency tries to exercise its regulatory over a large swath of an entire industry’s way of doing business, where the statutory authority to do so might be considered to be unclear.

In short, it’s complicated.

Can the Government Ban Pharma Advertising?

Theoretically, technically and legally, I’d give it a definitive but cautious/skeptical maybe, but maybe not.

Let’s start with what may be the most direct precedent supporting the ban, the ban on cigarette advertising

The cigarette ban was accomplished by the Public Health Cigarette Smoking Act of 1970: This law banned cigarette advertising on television and radio in the United States starting in 1971. The law was challenged and upheld in Capital Broadcasting Company v. Mitchell 450 F.2d 930 (D.C. Cir. 1971), because of the substantial government interest to protect the public, the widely acknowledged (and dare I say “proven”) health risk from smoking, and the right of the federal government to regulate commerce. The Supremes denied cert, which on a big case like this, means they didn’t disagree. So, there is precedent for restricting a product from access to media advertising.

But would that apply to a whole industry?

That’s a good question. An advertising ban on the entire Pharma industry would be a much heavier lift.

Twenty plus years ago, the federal government tried to ban the advertising of one small part of consumer drug advertising, namely the compounding pharmacy niche industry in Thompson v. Western States Medical Center, 535 U.S. 357 (2002). It lost. The legislature had amended FDA law to restrict compounding pharmacies from advertising and promoting their products. (Compounded drugs are not technically FDA approved, but that’s another story.) The court held that the restrictions failed the commercial speech test set forth in Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) because they were not narrowly tailored to serve a substantial government interest, and invalidated them as unconstitutional constraints on commercial speech.

Perhaps the case is distinguishable., but it shows that the Supremes take commercial speech seriously, as do the many, many other commercial free speech challenges to restrictions to commercial speech brought by professionals and businesses like pharmacies, pharmacists, lawyers and booksellers. (None of whom have a fraction of the financial muscle, legislative clout and PR reach as Pharma and the media.)

Justice Thomas has the longest history on the bench of protecting commercial speech (See his decision in 44 Liquormart) v Rhode Island 517. U.S. 484 (1996)) . Unless there was a very very good record. I think he would be a hard no. The ban would have trouble with the three on the left as well given what I take to be their pro-pharma and mainstream science inclination.
My read on all these cases is that in the U.S., it would be very hard to have an outright ban on truthful commercial speech of an entire industry, at least without a very compelling record. (But more about that later.)

What about the fact that only two countries in the world allow Pharma advertising?
That’s a strong rhetorical and good comparative public policy point. However, we have much stronger First Amendment free speech protections than most (if not all other) countries in the world. So, I wouldn’t bet the farm on this argument carrying the day.

What about all the evidence of the harm Pharma is causing to people and the public debate?
These would be excellent arguments if there were actual direct evidence of either. I have seen a couple studies which kind of, sort of, but… It’s something the new administration needs to take a hard look at, and I hope there is much evidence out there.

What about an executive order?
Executive orders still have to comply with the First Amendment. Add to that the statutory and perhaps constitutional issue of whether any individual or group of agencies has (have) been (or could be) granted the authority to implement a ban against an entire industry. It’s a separation of powers thing; i.e. arguably, it would take a congressional act, like with the cigarette ban. At the very least, the executive order route would add additional levels of statutory and constitutional difficulty. Once again, it might get down to the record which the agency creates to support the ban. Executive order by fiat is just not going to fly, and there is a good chance it would be preliminarily enjoined.

So the new administration can do nothing to stop Big Pharma from Paying off the Media to Sell the Pharma Lifestyle?

I wouldn’t go that far. The government has a big and deep toolbox which is has been using to regulate (and oppress) businesses it doesn’t like.

Commercial speech does not protect false and misleading speech, and such speech can be banned or sanctioned. I think there is much flexibility in the government’s view of misleading speech, (and if it wasn’t so painful, I’d relate my many legal battle scars inflicted by the government’s view of what it considers misleading).

Ok, an example. The government has some very counterintuitive notions of false speech and what is a claim. An herbal company was charged by the FTC with false advertising for making the historically true statement that Chaparral was used by Native Americans to treat cancer. FTC has an enforcement tool called an “implied claim.” (Think the inquisitor’s torture rack for concepts.) Here, the theory was that the actual claim contained the false or misleading implied claim that the herb cured cancer. I guess that’s because the feds think that the Native Americans cured cancer, but the cure was lost to the ages, but rediscovered by my herbal company client.

And do you think about trying to sell a supplement by listing every single study about it? Well, think again, because that would likely be a misleading claim because the public is not sophisticated enough to intellectually process lists of studies. And don’t even get me stated about how the government can twist the “materiality” requirement for prosecuting “false claims.” But alas, drudging up these memories is just too painful and depressing.

The government has some other really nifty procedures and artifices in its toolbox. There are advertising guidance documents which could be amended, albeit which would require administrative process (notice, comment period and a public hearing, which usually are a joke, because they are just a vehicle for the public and stakeholders to vent, and have little effect on what the government is planning on doing. But maybe that will change with the new crew).

Then there are the letters, the most feared being the warning letter which people and regulated companies often receive. But here is the fun part: you can’t contest them in court because they are not final agency actions.

Plus, there are civil and criminal investigations, which could be mounted against companies which appear to be violating the consumer protection and other laws against false advertising. There is a whole cottage industry of lawyers helping prepare responses to warning and other letters. (And may the Lord bless and keep all the agency employees who sustain us lawyers for protecting the government targets of illegal and abusive government action. I hope to have to change my tune once the new crew take over, since they may be going after the actual bad guys).

The other potential tool would be mandatory disclosures for the 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.

It might also be quite heartening if they would have to state (what might be obvious to some), that the amount the media company receives from Pharma may create a conflict of interest which bleeds over to other parts of their business parts, like their so-called news shows. (See above, re the black box warnings.) That might be an interesting thing for the new administration to kick around and use as a negotiating tool.

Consider this to be just some back of the envelope initial scribblings from a lawyer in the First Amendment/health care/FDA trenches. And FYI: I only speak for myself on this.
It will be interesting to see what the new administration comes up with.

In short, I have doubts about whether the new folks can pull the plug on Pharma’s mouthpiece, but I sure hope they try. And even if they don’t get that done, there are agency tools which could change the media’s behavior, to make it less of Pharma’s megaphone for the betterment of public discourse and public health.

Happy Thanksgiving
Rick Jaffe, Esq.