Photo by Mikael Seegen
Imagine you are sick with a serious medical condition. How would you feel if someone constantly told you to buy their product because it would cure you, but this ‘cure’ is actually worse than other treatments and the price tag is enormous?
This is the reality of prescription drug advertising. Whether it be on television or online, drug companies spend billions to tell Americans to buy their products. In 2024, giant pharmaceutical companies spent over $6 billion on television alone, and nearly $50 billion in the decade prior.
Yet, these advertisements don’t actually include relevant medical facts to prove that a drug is effective. And even more, they fail to provide evidence of risks. Even the long list of side effects that narrators are legally required to read off at the end of TV commercials often fails to include all health risks from each drug. Online advertising is worse, as it frequently fails to mention risks altogether. Instead, companies play hopeful music and show healthy, active people playing sports or otherwise enjoying their lives.
This is because drug advertisements are tools of emotional manipulation. Companies’ goals are not to share beneficial products with the public; they want to make consumers think their products will work. If they actually work, that is a bonus.
Studies show that drug companies spend more on less beneficial, more profitable treatments and less on more effective drugs. This coincides with Americans spending three times as much on prescription drugs in 2022 compared to other wealthy nations. For example, Americans spent 423 percent more for the antiinflammatory drug Humira compared to the United Kingdom, and Ozempic costs nearly $1,000 a month in the US compared to $155 in Canada and $59 in Germany.
These advertisements aren’t just wasteful, they are dangerous. In 2002, Merck aireda television ad for their antiinflammatory drug Vioxx, showing Olympic gold medalist Dorothy Hamill figure skating while explaining how Vioxx allowed her to overcome osteoarthritis pain.
What the advertisement didn’t say was that the company knew Vioxx was no more effective than another treatment, naproxen. Vioxx also increased the risk of heart attacks and strokes. While Merck raked in billions, the Food & Drug Administration’s Dr. David Graham estimated the drug killed 30,000 to 60,000 Americans.
Merck is by no means the only drug company that has deceived Americans about its products. From 1991 to 2021, drug companies paid federal and state governments more than $22 billion for unlawful promotion of their drugs. Yet, these fines pale in comparison to the $1.9 trillion the 35 largest drug companies made between 2000-2018.
Other countries recognize the danger of direct-to-consumer (DTC) prescription drug advertising, as the United States and New Zealand are the only two countries that allow it. Congress can try to join the rest of the world, as would happen if the government enacts Senators Bernie Sanders’s and Angus King’s ban.
Yet, courts will likely prevent the US from banning drug ads because doing so would violate the free speech protections enshrined in the First Amendment to the Constitution. Under current legal standards, ban supporters must show that drug ads are misleading, harmful to public health, and cannot be sufficiently improved by less restrictive government policy.
Indeed, drug advertisements do not educate Americans on the true risks and benefits of medication. They are companies’ sales pitches meant to get patients to buy their products even if a different drug or no drug would better serve Americans’ health. These ads have wasted money on less effective, more expensivedrugs while directly harming and killing Americans.
However, courts – especially the corporate–friendly Supreme Court – would likely rule that a direct ban is not the least restrictive means of stopping harmful drug advertising.
The Court may be right, as Congress can de facto ban deceitful drug advertising both on television and online without passing a direct ban. Congress can and should require companies to clearly mention – visibly and audibly – all risks from a drug rather than today’s weak standards that came from 1997 federal regulations that helped surge spending on drug advertising. Violations of this requirement must result in significant fines that threaten the profitability of the product.
Congress can also eliminate the liability shield protecting drug companies. Americans currently cannot sue drug companies for misleading and harming them as long as the companies warn doctors or other drug prescribers of risks.
By forcing companies to spend much of their paid advertising time mentioning all risks and opening them up to lawsuits, Congress can indirectly ban deceitful, harmful ads by making them unprofitable. Making drug companies liable for failing to warn consumers of all risks also better incentivizes companies to market drugs that are more safe and effective for the American people.
This op-ed was originally published by InsideSources.
