Carr Raises Prospect of Pharma Ad Ban, Would Face 1st Amendment Challenges
FCC Commissioner Brendan Carr, President-elect Donald Trump's pick as agency chair, has signaled he would be receptive to banning pharmaceutical advertising on broadcast television, but attorneys, analysts and industry officials told us any attempt to do so would face an uphill battle. “I think it probably requires that two-step, where Congress passes a law, or maybe [the Department of Health and Human Services] HHS can do it, but there is precedent where that happens and the FCC enforces it,” Carr said during a recent interview with radio host Dana Loesch. Losing pharma ads would be a “major hit” for TV broadcasters, as the industry represents nearly a third of local TV ad spending, said BIA Advisory Services Managing Director Rick Ducey. In 2023, pharmaceuticals spent $2.4 billion on broadcast TV ads, according to Media Radar.
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“I think we're just way, way too overmedicated as a country, and it's an odd situation where most people are sort of in a worse spot than ever before in terms of mental health, and yet somehow we're having more pharma ads than ever before,” Carr said during the Nov. 22 interview, after he raised the topic of banning pharma ads during a discussion of actions the FCC could take against the media. “The reality is, a broadcast license is not a sacred cow,” Carr said. “Yes, the FCC hasn’t taken any action on that front in a very long time, but I think we need to reinvigorate that.” Trump’s nominee for HHS secretary, Robert Kennedy Jr., pledged to ban pharma TV ads when he was running for the White House.
Carr took a different stance the last time an FCC commissioner aimed at an industry’s advertising. In 2019, then-Commissioner Jessica Rosenworcel, now chairwoman, wrote an opinion suggesting federal agencies should scrutinize electronic cigarette ads. In a February 2019 post about Rosenworcel's column, Carr wrote, “Should the government censor speech it doesn’t like? Of course not.” He continued, “The FCC does not have a roving mandate to police speech in the name of the ‘public interest.’” In an interview about Rosenworcel's column, Carr said, “Anytime a government official calls for censoring lawful speech, alarm bells should go off” (see 1902210044).
The FCC wouldn’t likely be the primary focus of a Trump administration push banning pharmaceutical TV ads, said Wilkinson Barker broadcast attorney David Oxenford in an interview. Instead, such a ban would likely target the pharmaceutical companies rather than broadcasters, he said. In the Loesch radio interview, Carr compared a pharma TV ad ban to restrictions against cigarette advertising on TV, which Congress enacted in 1970. Subsequent attempts to ban ads for other industries have run into constitutional hurdles, Oxenford said. The U.S. Supreme Court struck down rules against sports betting and sports betting advertisements in 2018, and laws against advertising casinos and lotteries have also historically been struck down on constitutional grounds, Oxenford said in a blog post.
“These types of proposals to ban pharmaceutical advertising seem to crop-up fairly frequently at different intervals in different administrations,” said Alison Pepper, Executive Vice President of Government Relations and Sustainability for advertising trade group the 4A’s. “It would not be a constitutional restriction,” said Robert Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression, in an interview. “Pharmaceutical advertising, like other types of advertising, has commercial speech protections under the First Amendment,” Pepper said. “The government would have to make a very uphill argument to overcome First Amendment challenges, as similar proposals have failed in the past.” NAB didn’t comment.