Prescription Drug Ads and the First Amendment
Robert F Kennedy Jr.'s call to ban prescription drug commercials on television is not to be taken seriously unless and until he explains how the ban would not violate the First Amendment. I'm open to such an explanation, but simply ignoring the constitutional right to free speech while focusing exclusively on the drawbacks of pharmaceutical advertising, is not persuasive. Laymen can be excused for forgetting to attach reason to their passions, but Kennedy is an attorney who should realize he needs a strong factual argument to achieve his goal.
It’s not the first time Kennedy has relied on emotionalism to thrill the clueless public. Before he dropped out of the 2024 presidential race, he declared his censorial intention “to pass a constitutional amendment to overrule the Citizens United case.” Whether it was a reflection of ignorance, or disingenuousness, Kennedy insisted an amendment is needed to prohibit “corporate political contributions,” even though it is already illegal for corporations to donate directly to a candidate or political party.
In both instances, Kennedy and his ilk fail to define the core behavior that would be restricted, or to describe any sort of limiting principle. Although regulation proponents often make it seem confusing, it’s really pretty simple. Congress generally lacks authority to stop us from speaking or spending as we please, and any exceptions must be specific and narrowly tailored to address a compelling governmental concern. If a constitutional right can be eliminated in some circumstances, we need to know in what circumstances that could be. We also need to know in what circumstances the right could not be be eliminated (the limiting principle). In other words, we need to know where the line is drawn between regulable and non-regulable activity. Without that clarity, no exception is even eligible for consideration.
Even if his advocacy were explicit, Kennedy might be barking up the wrong tree when it comes to empowering patients to make informed decisions. Instead of banning TV ads, why not require transparency and accuracy, and hold advertisers accountable for misleading the public if it happens? In the mid-1990s, tobacco companies were sued for deceptive and fraudulent practices. It led to the Tobacco Master Settlement Agreement (MSA) which set permanent restrictions on marketing and advertising, in addition to compensatory funds associated with treating smoking-related illnesses and economic losses. Thusly, the sort of result Kennedy is now pursuing in connection with prescription drug ads, was accomplished without curtailing First Amendment rights.
Prior to the MSA, cigarette commercials were already banned on radio and television, and the prohibition remains in effect. But it shouldn’t be assumed that a similar ban on pharmaceutical advertising would pass constitutional muster today. Tobacco companies have never even challenged the ban imposed on them, and the Supreme Court did not recognize First Amendment protection for commercial speech until well after Congress passed the Public Health Cigarette Smoking Act of 1969 which made cigarette advertising on radio and television unlawful.
Regardless of what is or isn’t constitutionally permissible, no cost-benefit analysis is valid if it includes only the costs. Whereas Kennedy says nothing about actual or potential benefits, Dr. John C. Goodman contends: “The social value of drug advertising is that it alerts patients to the fact that there is a possible remedy for a chronic illness. The payoff is that the viewer might seek medical advice from a doctor and get a prescription, where appropriate.”
In last week’s episode of The Winers, Dr. James Schlotman described the consequences of patients pressuring doctors to prescribe drugs touted in TV commercials.
Without full transparency from all stakeholders, it’s difficult for the average person to quantify that downside versus the upside that Dr. Goodman cited. And if Kennedy - who frequently and rightly complains that his speech has been suppressed - continues to eschew vigorous debate about the ban he wants, his effort to restrict pharmaceutical companies could be seen as ironic if not downright hypocritical.
What Dr. Schlotman was getting at in the show above, as an anesthesiologist, is that people are not educated sufficiently to stop medications prior to "going under".
The question I see here, is "Free Speech" a trump card (no pun intended) on the "General Welfare" of the Nation's People?
Free Speech certainly comes up in defense against previous efforts to limit pharmaceutical advertising, including attempts to require drug pricing in commercials, which have been blocked by the courts on First Amendment grounds.
What RFK Jr. may be able to show is that pharma industry people are incestuously in bed with the FDA --- just like the revolving door between the Defense Department and weapons manufacturers --- a clear conflict of interest.
Indeed, as of 2016, More than a quarter of the Food and Drug Administration employees who approved cancer and hematology drugs from 2001 through 2010 left the agency and now work or consult for pharmaceutical companies. The University of Standford Law Department released a 60+ page report on the highly questionable revolving door between FDA and the pharmaceutical companies in a report entitled "FDA's Revolving Door: Reckoning and Reform".
Take the case of OxyContin. While it is now well known that the epidemic opioid crisis of the 1990s was due to the false claims of Purdue Pharma (claims that the drug was a mere Schedule II painkiller), the main medical expert primarily responsible for oversight of the drug, Curtis Wright was later hired by Purdue Pharma with a hefty salary. Was that "free speech" or an abuse, and how many people died as a result?
The General Welfare was not served.
According to the FDA website:
- The FDA does not approve prescription drug ads in advance, but its staff "tries" to monitor them to ensure claims are not false or misleading. "This means that the public may see ads that violate the law before we can stop the ad from appearing or seek corrections to the ad." (see above re: OxyContin)
- Importantly, under certain circumstances, ads can give only the most important risks. Ads don't have to tell you how many people who take the drug will be helped by the drug.
The American Medical Association and the American Society of Health-System Pharmacists have both urged in the last decade that direct-to-consumer drug advertising be banned, saying the ads essentially warp health information and communication about medications by pushing only the latest and most expensive drugs.
The Journal of American Medical Association, JAMA, published a study January 2023, "Therapeutic Value of Drugs Frequently Marketed Using Direct-to-Consumer Television Advertising, 2015 to 2021" has as a shocking admission: "Fewer than one-third of the most common drugs featured in direct-to-consumer television advertising were rated as having high therapeutic value, defined as providing at least moderate improvement in clinical outcomes compared with existing therapies."
- So again, just like the revolving door issue, the question can also be asked: "Is Direct To Consumer Marketing (DTCM) benefitting the General Welfare of the public or the pocketbook of the drug company?"
Look at cannabis marketing or alcohol marketing, as they have similar marketing requirements but cannabis is banned at the federal level. Since marijuana is banned at the federal level, you won’t see any national advertising for the substance — i.e., you can’t take out an ad in a national sports publication for cannabis because it would probably get the magazine into a mess with federal regulators.
The question of a ban MAY be a First Amendment question but it also may be the case that the wellbeing of the public Trumps that. Certainly the consequences of a cartel of companies that provide medications to all Americans are more far reaching when those companies exercise "speech" than when a handful of KKK guys stand on a bridge doing the Nazi salute.
It's not equally "free speech".
https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2800405
https://law.stanford.edu/wp-content/uploads/2023/03/SLPR_Karas.pdf
https://www.npr.org/sections/health-shots/2016/09/28/495694559/a-look-at-how-the-revolving-door-spins-from-fda-to-industry
https://news.northeastern.edu/2024/02/16/drug-advertisements/
This is an argumrnt thst only has relevance in the USA. Most countries treat health care as a public good and advertising is unnecessary. When people need medical attention, they can discuss the effectiveness of safety models. The argument about advertising as ‘education’ is nonsense. Everyone knows the purpose of advertising is profit increase by manipulation . And do these ‘educated’ patients write their own prescriptions and are they licensed to order or conduct diagnostic tests? Obviously not. So to use the fallacious ‘education’ or ‘free speech’ argument is an insult to intelligent people. Arguments like this make me so happy that I live in a place where advertising prescription drugs to ordinary people is given the same disrespect as encouraging people to use cocaine. OFFENSIVE.