Brooklyn Law Review


Pharmaceutical companies advertise drugs directly to consumers via television and radio broadcast commercials, print advertisements, and the internet. Although broadcast advertisements are demonstrably unable to adequately convey risk information, a total ban on them would be too restrictive, and any regulation targeting these advertisements must withstand First Amendment scrutiny. The FDA’s recent attempts to modify its requirements for broadcast advertisements do not overcome these challenges. It is in the best interest of patients, doctors, the drug industry, and the government for Congress to authorize the FDA to regulate broadcast drug advertisements as limited calls to action, consisting of restricted product claims in which the FDA would ban drug manufacturers from making efficacy claims and disclosing specific risks. Such broadcasts, instead, would redirect viewers to platforms better suited to convey detailed efficacy and risk information, such as a website, print materials, and a doctor’s office.