Drug Commercials—How Are They Still a Thing?

As for its impact on the patient, the question becomes, “Where do First Amendment rights give way to the patient’s right not to be misled?” The Supreme Court has consistently held that freedom of speech is not an absolute right. Justice Oliver Wendell Holmes famously held that “the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing panic.”¹⁰

Where Do We Go from Here?

The Responsibility in Drug Advertising Act seems like a reasonable compromise and a reasonable start. DTC advertising is not going anywhere—its roots are too deeply entwined in American jurisprudence to be extirpated—but that does not mean we should not be willing to study the issue, to try to figure out how to strike a balance between reality and the images of happy people playing catch or walking down a beach.

Philip Seo, MD, MHS, is an associate professor of medicine at the Johns Hopkins University School of Medicine, Baltimore. He is director of both the Johns Hopkins Vasculitis Center and the Johns Hopkins Rheumatology Fellowship Program.

References

1. The impact of direct-to-consumer advertising. U.S. Food & Drug Administration. 2015 Oct 23.
2. Kravitz RL, Epstein RM, Feldman MD, et al. Influence of patients’ requests for direct-to-consumer advertised antidepressants: A randomized controlled trial. JAMA. 2015 Apr 27;293(16):1995–2002.
3. Donohue JM, Cevasco M, Rosenthal MB. A decade of direct-to-consumer advertising of prescription drugs. N Engl J Med. 2007 Aug 16;357(7):673–681.
4. H.R. 4565 (114th Congress): Responsibility in Drug Advertising Act of 2016. GovTrack.
5. Direct-to-consumer advertising under fire. Bulletin of the World Health Organization. 2009 Aug;87(8):565–644.
6. Gershon L. Should drug makers advertise? JStor Daily. 2018 Mar 8.
7. Va. Pharmacy Bd. V. Va. Consumer Council. 425 U.S. 748 (1976).
8. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. Oyez.
9. Phillips-Fein K. Company men. The New Republic. 2018 Mar 29.
10. Schenck v. United States. 249 U.S. 47 (1917).