Trump and RFK promised to ban D2C pharma advertising. Pharma is ready for a fight.

The world has turned upside-down since Donald Trump began his second term as President on 20th January, and things previously thought unthinkable have been happening at an alarming rate. So, the idea that the United States might join peers around the world in banning direct-to-consumer advertising is one that the pharma industry is taking seriously, even with the legal and constitutional hurdles such a ban would present.

“I would be surprised if nothing happens,” Jayson Slotnik, who runs the consulting firm Health Policy Strategies, told pharmaphorum. “In other words, I do think this administration, I do think [Robert F.] Kennedy [Jr] will try to limit drug advertising in some way.”

Robert F Kennedy Jr, former independent candidate for president and current secretary of the Department of Health and Human Services, made a campaign promise, both as a candidate in his own right and when campaigning for Donald Trump after he dropped out.

“One of the things I’m going to advise Donald Trump to do in order to correct the chronic disease epidemic is to ban pharmaceutical advertising on TV,” he said at a campaign event for Trump before the election, then later posted in a video on X. “There’re only two countries in the world that allow pharmaceutical advertising on the airwaves. One of them is New Zealand, and the other is us, and we have the highest disease rate and we buy more drugs and they’re more expensive than anywhere in the world.”

Nonetheless, Slotnik and Jim Potter, the executive director of the Coalition for Healthcare Communication, share the same message for pharma companies: don’t panic, and don’t obey in advance.

“Don't get too flummoxed,” Potter said. “Don't do extreme things like pulling back all your advertising or saying we're giving up the ship because somebody said we can't do this anymore. The Supreme Court precedent really gives you a firm basis to challenge any kind of order or a state law because most state laws have a freedom of speech clause in their constitutions.”

Why RFK Jr and Trump want to ban pharma advertising

Banning direct-to-consumer advertising, whether on television or more broadly, isn’t quite the same as RFK Jr’s controversial views on vaccines – it’s an idea with a fair amount of popular support.

Most other countries in the world already ban D2C pharma advertising. The American Medical Association came out in favour of a ban a decade ago. And, while there is precious little data to be found on how Americans feel about a ban on pharmaceutical advertising, what there is shows it to be popular. A 2016 survey of about 1,000 Americans, conducted by STAT and the Harvard TH Chan School of Public Health, found that 57% of respondents favoured a ban on pharma ads on television, while 39% opposed it.

The reasons behind such a position are layered. Popular support of such a ban generally revolves around the idea that pharma advertising is somehow misleading, encouraging people to make health decisions for the wrong reasons. Or it reflects a general distrust of the pharma industry.

There’s also a budgetary argument: that making pharma companies spend less on advertising will lead to a reduction in drug prices. But there’s not much data supporting that supposition.

“When you look at a CBO report from 2024 and some other publications, you don't get a dramatic reduction in overall drug spend,” Slotnik said. “Compounding the fact that it's not a dramatic straight out reduction, some of the direct to consumer advertising, ironically, when you list the side effects or you list what it's aimed to treat, stimulates a patient to go and ask for the drug, get treated justifiably, clinically, appropriately, and reduces health care costs in the long term.”

That CBO report found only a 0.1% to 1% reduction in drug costs from banning pharma advertising, and that reduction would come from a reduced demand adversely affecting pharma’s negotiating power, not from any significant cost savings on the part of pharma companies.

Politically, Potter says, the administration’s impetus probably may not have much to do with either of those possibilities.

“I think it goes to the question of leverage,” Potter said. “That’s what the President likes to do […] Every time I've had direct interaction with him, I've watched him use a series of tactics to kind of upset somebody and to gain some kind of little bit of advantage so he can come in and try to negotiate whatever he wants, [which is] leverage either over the broadcasters or over the pharmaceutical industry.”

Beyond television

Interestingly, he’s much more likely to get that leverage over broadcasters. A television advertising ban would affect pharma less than most people think, because the impetus for most pharma advertising is winning market share over competitors who are also advertising on television. Take that away universally and you leave pharma with an even playing field and one less line item on their budget.

But pharma is still concerned and making a plan, because a wider move by the administration could hurt them much more.

“There is a big assumption being made here by a lot of folks that, oh, it's only going to be limited to television,” Potter said. “I don't think I would ever make that assumption. Not with this administration, not with the people that we're dealing with.”

As evidence, Potter points to bills that have been introduced to state legislatures around the country that attempt to ban direct-to-consumer advertising more broadly.

“There is a recent bill in Oklahoma, Senate Bill 771, that would ban broadcasting of pharmaceutical advertising for […] any promotional communications targeting consumers. And it's including, but not limited to, television, radio, online streaming services, billboards, emails, text messaging, social media, and print or digital publications. That’s pretty much everything, depending upon how you slice it.”

There are also other avenues the government could pursue. One popular one is removing the tax subsidies for pharmaceutical advertising – not banning it outright, but making it more expensive and less profitable. Another is to require more transparency in advertisements, like requiring companies to include the list price of drugs.

How a ban might go – and how pharma is planning to fight back

Most of President Trump’s dramatic first month moves have been carried out via executive order – a versatile and broad presidential power, but also an inherently limited one.

“The president can say anything he wants, but he doesn't have the enforcement power to immediately enact,” Potter said. “It has to be enacted by specific agency; in this case, more likely than not the Food and Drug Administration, which over the years has kind of claimed jurisdiction for pharmaceutical advertising, both first for physicians and then for the general public, the consumers.”

Slotnik is sceptical that the new FDA Commissioner, Dr Marty Makary, will play ball.

“Whether [Kennedy] and the now approved FDA Commissioner agree to [a ban] and allow that to see the light of day is something to be seen, because the FDA Commissioner seems to be more in the mold of a traditional person who you would see – a practicing physician, [who] worked here at Hopkins, knows the DC Beltway game, has hired experienced chief of staffs and people around him. So, you’re seeing a more traditional FDA being stood up, which probably is a little bit more experienced and a lot more reasoned about what may or may not be done from the FDA point of view on this.”

Perhaps more importantly, many of Trump’s first-term executive orders were defeated in the courts, and most of his more recent orders have already been challenged in court. And the Supreme Court precedent on this particular issue is fairly settled.

“What’s really backing this up are the Supreme Court precedents that started in a series of rulings dating back to the 1970s, where the court viewed advertising as a form of commercial speech. And they now have invented rules on how you can go about banning advertising that doesn't violate the first amendment protections that form our freedom of speech,” Potter explained.

The Central Hudson Test says that, in order for the government to ban commercial speech, the ban must directly advance a substantial government interest and must be narrowly tailored to advance that interest.

Other precedents could present problems for the tax subsidy and list price approaches.

“If you're going to go about it trying to use the tax code, the courts have said we're going to give you a high level of scrutiny because, after all, it is the First Amendment,” Slotnik said. “So, it's going to be really tough to either use the tax code or the regulatory process to achieve what the administration on the campaign trail at least has said, which is elimination of direct to consumer advertising for pharmaceuticals.”

So far, neither Kennedy nor Trump has announced a real effort to make a pharma advertising ban a reality. But it’s hard to imagine they won’t try to keep what was, for Kennedy at least, a major campaign promise.

But the industry is ready to spring into action if such an attempt is made, Potter said. He gave his parting advice to pharma:

“Don't overreact, stay with the course, know that we've got a plan and we're going to challenge anything like this that comes at either the federal or the state level.”