That I’m aware of the US and New Zealand are the only countries where direct-to-consumer TV advertising of pharmaceuticals, of a prescription kind anyway, are legal. In the US pharmaceutical companies spend a lot more money on advertising than R&D and it’s theorized that the money spent on these TV ads is a big part of why drugs are so much more expensive than the rest of the world.
Could a US president, likely one more concerned about making a mark with a big change than losing funding to get re-elected (perhaps in his or her second term, she suggests cynically) sign an executive order to ban direct-to-consumer advertising? Cigarettes TV ads have already been banned, so I assume that whatever first amendment challenges that ban survived would be survivable here too.
How about in New Zealand, could that country’s leader unilaterally ban the TV ads there too?
The President has the authority, via executive orders, to tell federal agencies to adopt particular policies.
What federal agency’s policies do you think would be relevant to such a decision?
Congress probably could do it, by passing a law, with the authority justified under the Interstate Commerce Clause. Is there a reason you’re specifically asking about executive orders?
The President could direct the FDA to tighten the regulations on prescription drug advertising significantly, for example requiring more complete information about side effects be presented with every ad. This might be sufficient to effectively remove TV and radio advertising, maybe not print or online.
Congress could certainly do it. The companies would likely challenge on First Amendment grounds. The SC has recognized some protection for commercial speech, but the companies would have an uphill battle, in my humble and non expert opinion.
Briefly, in the U.S., the FDA has broad statutory authority to regulate pharmaceutical advertising. The last major revision was in 1997, when the FDA relaxed the requirements for providing full and complete information; since then, d-t-c advertising has grown to about $5.2 billion a year (contra the OP, the U.S. pharmaceutical industry spent over $71 billion a year on R&D as of 2017, more than ten times the amount they spend on d-t-c advertising).
The FDA is, in practice, a quasi-independent agency, but legally it’s part of the Department of Health and Human Services, and answerable to the President. IANAL, but I think that the President would be within his authority to direct the FDA to ban d-t-c consumer drug advertising (although such and order would undoubtedly be challenged in court).
According to JAMA advertising was up to 29.9 billion in 2016. Are you sure the Wiki article isn’t trying to imply it has increased by 5.2 billion, not to 5.2 billion?
According to the article cited, the total for all medical marketing, including “drugs, disease awareness campaigns, health services, and laboratory testing”, was $29.9 billion in 2016. DTC prescription drug advertising was $6 billion (roughly what Wiki stated).
Most likely could be done by administrative regulation. I don’t think there’d need to be specific legislation, but it could I suppose be done like the tobacco advertising ban, which is under the Smoke Free Environments Act 1990. It’s currently allowed under the Medicines Act 1981 and Medicines Regulations 1984.
However, it would be unlikely the leader would do this or could do this. The Prime Minister is the head of government and In a parliamentary democracy like ours, does not have executive powers like a president does.
If it was a matter of regulation, then the appropriate minster would make the decision. If it is by legislation, then it would be introduced by the appropriate minister and debated and voted on by Parliament before becoming law.
The President could order the FDA to restrict drug advertising.
The President could order the FCC to direct broadcast stations to not accept drug ads.
The President could order the IRS to not allow drug advertising as a deductible business expense.
The President could order Medicare, VA, Tricare to only pay for non-advertised drugs, or pay lower prices (excluding advertising costs), or import drugs from Canada.
The President could order universities that accept Federal grants/scholarships to not license drugs the university discovers to drug companies that advertise them.
All these decisions could be challenged in court by drug companies.
Canada allows the drug to be named, or the affliction to be named, but not the two. It also does not allow "ask your doctor about placebinol " type of ads. However, Canada does not really have freedom of speech.
The problem I see for OP is that the constitution provides for free speech in the USA. To restrict such speech, the government would need a good offsetting reason - “We restrict advertising sugar-coated cereal products to kids, because of the medical and dental problems associated.” So I presume any attempt to restrict drug advertising would face a similar test in the courts. the pharma argument would b that it is important for patients to know about available treatments. If the ad says “ask your doctor” and mentions the side effects instead of hiding them, then the patient is informed. The president would have to explain why his order was necessary, and why a less restrictive order was not sufficient. I assume (IANAL) that the courts have to see that there is an obvious purpose and benefit to a limitation of free speech that balances to loss of freedom.
I’m always baffled as to why other cultures are so baffled that the USA (and NZ) allow this. As if it’s some kind of affront to the sanctity of … something sacred.
When I was 12/13, I was in the throes of mad depression. Anhedonia, suicidal ideation, feelings of worthlessness, etc. I legitimately had absolutely no idea that there was anything wrong with me – I just thought adolescence was tough. Had I seen the types of commercials I see today (“talk to your doctor about depression…”) I might very well have talked to my doctor about depression, and quite possibly have turned my life around.
I’m pretty sure the answer is no. Even Congress couldn’t pass a law banning direct-to-consumer ads for prescription medicine across the board, because the freedom of speech. If Congress can’t do it, the federal agencies (FCC, FTC, FDA) can’t do it; if the agencies can’t do it, the President can’t tell them to do it.
Also, Congress’s power to regulate inter-state commerce wasn’t enough to prohibit broadcast advertisements of gambling if said broadcasts are located in states where gambling is legal. Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173 (1999). I think even if the Congress/FTC banned television broadcasts, local advertisements could probably bypass or overturn the ban.
I suspect the ban on radio/television advertisement for tobacco ads would be overturned if brought before the Supreme Court today. The Public Health Cigarette Smoking Act of 1971 (now 15 U.S.C. § 1335) made it “unlawful to advertise cigarettes and little cigars on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission”. The law was immediately upheld as constitutional when the Supreme Court affirmed a lower court ruling. The lower court ruling said, 1) commercial speech (advertising) doesn’t count as protected speech for First Amendment purposes, and 2) the petitioners in that particular case (the broadcasting station) were still free to speak about cigarettes, they just couldn’t broadcast other people’s advertisements. 333 F. Supp. 582 (D.D.C. 1971), aff’d sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000, 31 L.Ed. 2d 472, 92 S. Ct. 1289 (1972).
In 1975 the Supreme Court extended First Amendment protection to commercial speech. Bigelow v. Commonwealth of Virginia, 421 U.S. 809 (1975). There has been a litany of cases reinforcing the idea that advertisements and other commercial speech is protected; however, the Public Health Cigarette Smoking Act of 1971 has not been revisited.
Canada does not ban “talk to your doctor about depression”. It bans “Talk to your doctor about [insert addictive prescription drug here] for depression.” Basically, the logic is that the patient should not be telling the doctor what they want to take, based on a commercial they saw on TV. Prescription drugs are regulated for a reason - they are strong medicine. It’s up to the doctor to decide what medicine is appropriate, not the general public influenced by clever commercials. Doctors should not be on the receiving end of the same sort of pressures as kids give their parents - “I want the Math-Is-Hard Babbling Barbie I saw on TV!!”
I don’t know, what are we looking at there? I see a bar chart with a Y axis labeled “Number”, a bunch of bars of order 1, and no indication of what any of the bars is. That could be absolutely anything.
