Kyle Faget Examines Regulatory Shift on Pharmaceutical Advertising

Foley & Lardner LLP partner Kyle Faget examined potential regulatory changes in pharmaceutical advertising in the Crain’s Chicago article, “What would a sea change in drug advertising mean for big-spending AbbVie?“

Faget said targeting pharmaceutical advertising is a priority of U.S. Health and Human Services Secretary Robert F. Kennedy Jr. “There’s no secret that Kennedy is against direct‑to‑consumer advertising,” she explained. “If he could, he would ban it all.”

She noted that the United States is one of only two countries that currently permits direct‑to‑consumer drug ads, and that the administration’s view is that the practice can “skew the patient‑provider relationship.”

Faget said an across-the-board ban has already been litigated and the issue “hit directly against the First Amendment” with drug companies having a right to advertise. Advertisers navigate the current rules requiring broadcast advertisements to disclosure major statements of risk by either omitting the name of the specific drug from the ad and discussing the medical condition it treats instead, or by not making claims about how the drug helps and advising consumers to ask their doctors about the drug, she added.

Depending on how restrictions move forward, Faget said that regulations could be litigated on First Amendment grounds or on claims that the FDA is “overreaching its authority.”

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