Kyle Faget Assesses Potential Restrictions on Pharma DTC Ads

Foley & Lardner LLP partner Kyle Faget assessed potential restrictions on health care advertising in The Capitol Forum article, “Health Care Policy: Analysis of Potential Policy Outcomes, Industry Effects of MAHA’s Efforts to Target Direct-to-Consumer Pharma Ads.”

“You’re not going to be able to get rid of advertising and promotion wholesale,” Faget said of a push led by the administration’s Make America Healthy Again Commision. “What I think you could see is a strengthening of enforcement around things like important safety information.”

Faget explained that the U.S. Food and Drug Administration’s legal authority to regulate advertising by telehealth companies, a goal listed in an earlier draft of the administration’s incoming policy approach, is in question as these companies are arguably providers, rather than manufacturers. She noted, however, that the U.S. Federal Trade Commission could step in to regulate telehealth companies in limited circustamnces.

“FTC could arguably say, ‘Hey, look, that’s misleading. That might be an avenue for [U.S. Health and Human Services Secretary] Kennedy to put pressure on the FTC to regulate in that way. But I don’t think you’re going to be able to see complete evisceration of advertising and promoting of pharmaceuticals, not without there being serious litigation.”