Grace Genereaux
Whether you are watching television, scrolling on TikTok, or browsing the internet, you are likely to see one particular type of advertisement: prescription drugs. Only the United States and New Zealand allow for drug companies to directly advertise prescription drugs to consumers.[1] Other countries have banned the advertising of prescription drugs over a concern of harmful effects on health outcomes.[2] Drug advertising can cause people to spend more money on a pharmaceutical when there is a cheaper alternative and may provide “distorted drug information, unnecessary prescriptions, and reduced prescribing quality.”[3] This type of advertising is referred to as direct-to-consumer advertising (“DTCA”), and it has remained a controversial topic.[4]
Those who wish to ban DTCA for prescription drugs are concerned about the reliability and effectiveness of these advertisements in actually communicating the benefits and risks of a drug.[5] European countries have chosen to keep the ban on DTCA for prescription drugs due to the sensitive nature of drug information.[6] Countries are concerned with the DTCA of pharmaceuticals because of the “perceived deleterious effects on rational prescribing, pharmaceutical expenditure, and health outcomes.”[7] These issues come into play as drug advertising increases demand for specific, more expensive, pharmaceuticals.[8] Individuals see these advertisements all over in daily life and are then prompted to bring the drug up to their doctor, which may lead their doctor to prescribe them a more expensive drug instead of the cheaper alternative.[9] There is also concern about television and internet advertisements not properly conveying the message of risks and benefits.[10] Often these warnings come at the end of a commercial and consist of a voice rapidly listing off all of the side effects of a drug, which can result in the consumer being unable to fully understand the information.[11]
People on the other side of the issue argue that DTCA of prescription drugs brings several benefits to patients.[12] Drug companies argue that DTCA for prescription drugs “facilitate[s] meaningful discussions between doctors and patients about their health, otherwise unknown diagnoses, and available treatments.”[13] Specifically, drug companies argue that DTCA causes more people to visit their doctor concerning a diagnosis that may have gone unnoticed.[14] Patients also may be more likely to discuss problems with their doctor that they previously did not feel comfortable discussing.[15] The Association of the British Pharmaceutical Industry argues that “the current ban on drugs advertising is unfair and is not in patients’ interests” because it limits the patient’s choices.[16] While the decrease in stigmatization of medical problems and patient autonomy is a positive result of drug advertising, these advertisements do not adequately address the complicated risks associated with prescription drugs.[17] In response to supporters of DTCA, one European Parliament member points out that in the U.S., the top advertised drugs are also the top selling drugs.[18] This demonstrates that advertising clearly has an effect on the market.
Recently, lawmakers in the U.S. have been pushing the FDA to pass the Banning Misleading Drug Ads Act which would help stop advertisers from using distractions and unclear language in their advertisements.[19] The Act finalizes a prior rule from the FDA which requires a drug advertisement “be presented in a clear, conspicuous, and neutral manner.”[20] This also means that advertisers cannot use images or text that would distract the consumer from the information.[21] Overall, it is an attempt to clarify the past rule and require that “drug ads [must] include a statement related to side effects, contraindications, and effectiveness.”[22] The lawmakers behind the legislation are concerned that drug companies directly advertising to consumers undermines doctors’ opinions.[23] These lawmakers share a substantial concern over advertisers’ ability to manipulate older consumers who depend on prescription drugs.[24] This Act wants to finish what the FDA started and stop the information from drug commercials taking over the important information that a doctor would provide a patient.[25] The Act promotes patients making informed decisions with the help of their doctor by limiting “drug manufacturers from obscuring dangerous side effects . . . in their advertisements. . . .”[26]
While the Banning Misleading Drug Ads Act attempts to limit the harm DTCA of prescription drugs can cause on consumers, it has still not passed,[27]and DTCA remains legal in the U.S. Many groups support the Act and further regulation of DTCA, but lawmakers will likely need to do more than pass this legislation to really stop the negative effects of DTCA.[28] Prescription drugs are a unique product that could seriously harm consumers if taken incorrectly. It is important for individuals to have accurate information and that is not distorted by distracting drug advertisements. Clear drug advertisements that communicate accurate risks and benefits of a prescription drug allow consumers to make informed choices and may facilitate more open conversations with their doctors.
However, DTCA for prescription drugs overall still puts consumers at risk and manipulates the drug market.[29] Drug advertising is a billion-dollar industry that takes advantage of the consumer and can lead to doctors inappropriately prescribing medications.[30] DTCA in the U.S. “helped create an epidemic of prescription drug use, with U.S. sales reaching $425 billion in 2015.”[31] Opioids, for example, were marketed as a safe option for long term pain relief, but, in reality were not.[32] Doctors then feel pressure to provide demanding patients certain medications, and this contributes to extreme health crises like the opioid epidemic.[33] Drug companies that can afford the most advertising will likely continue to gain more popularity, even if there are better, cheaper, and safer alternatives.
Drugs can be lifesaving, but ones that are extremely addictive and dangerous have no place being marketed to the public.[34] While the Banning Misleading Drug Ads Act is one step closer to more transparency in the pharmaceutical market, lawmakers should continue fighting against DTCA of prescription drugs. Consumers in the U.S. should be protected the same way consumers are protected in every other country besides the U.S. and New Zealand. There are many reasons that DTCA for pharmaceuticals is banned in almost all countries and the U.S. should reconsider their stance.
[1] Deborah Gleeson & David B. Menkes, Trade Agreements and Direct-to-Consumer Advertising of Pharmaceuticals, 7 Int’l J. Health Pol’y & Mgmt. 98, 99 (2018).
[2] Id. at 98.
[3] Id.
[4] Id; Andrew Andrzejewski, Direct-to-Consumer Calls to Action: Lowering the Volume of Claims and Disclosures in Prescription Drug Broadcast Advertisements, 84 Brook. L. Rev. 571, 572 (2019).
[5] Andrzejewski, supra note 4, at 572.
[6] See Giampaolo Velo & Ugo Moretti, Direct-to-Consumer Information in Europe: The Blurred Margin Between Promotion and Information, 66 Brit. J. of Clinical Pharmacology 626, 626–27 (2008).
[7] Gleeson, supra note 1, at 98.
[8] Id.
[9] See id.
[10] Andrzejewski, supra note 4, at 584–85.
[11] See id.
[12] See Gleeson, supra note 1, at 98.
[13] Andrzejewski, supra note 4, at 572.
[14] Id.
[15] See, e.g., Aaron Twerski, Liability for Direct Advertising of Drugs to Consumers: An Idea Whose Time has Not Come, 33 Hofstra L. Rev. 1149, 1151–52 (2005) (discussing patients who are more likely to talk to their doctor about alternative medications when the drug they are on causes negative side effects such as a decrease in libido).
[16] Claire Cozens, Europe Rejects Drug Advertising, Guardian (Oct. 23, 2022, 11:54 AM), https://www.theguardian.com/media/2002/oct/23/advertising.marketingandpr.
[17] See Twerski, supra note 15, at 1152–53.
[18] Cozens, supra note 16.
[19] Joanne S. Eglovitch, Proposed Legislation Takes Aim at Prescription Drug Advertising, Regul. Affs. Pros. Soc’y (July 11, 2022), https://www.raps.org/news-and-articles/news-articles/2022/7/proposed-legislation-takes-aims-at-prescription-dr.
[20] Food and Drug Administration Amendments Act of 2007, Pub. L. No. 110-85, § 906, 121 Stat. 823, 940 (2007).
[21] Spanberger Leads Effort to Crack Down on Drug Companies & Misleading Ads, Increase Transparency for Consumers, (July 5, 2022), https://spanberger.house.gov/posts/spanberger-leads-effort-to-crack-down-on-drug-companies-misleading-ads-increase-transparency-for-consumers.
[22] Id.
[23] See id.
[24] Id.
[25] See id.
[26] Id.
[27] All Information for H.R.8289 – Banning Misleading Drug Ads Act of 2022, 117th Cong. (2022), https://www.congress.gov/bill/117th-congress/house-bill/8289/all-info.
[28] Eglovitch, supra note 19.
[29] Jeremy A. Greene & David Herzberg, Hidden in Plain Sight Marketing Prescription Drugs to Consumers in the Twentieth Century, 100 Am. Pub. Health Ass’n 793, 793 (2010).
[30] See Bruce M. Psaty et al., Addressing the Opioid Epidemic – Opportunities in the Postmarketing Setting, 376 New Eng. J. of Med. 1502, 1502 (2017).
[31] Id.
[32] Andrew Kolodny, How FDA Failures Contributed to the Opioid Crisis, 22 AMA J. of Ethics 743, 745 (2020).
[33] Miguel J. Franquiz & Amy L. McGuire, Direct-to-Consumer Drug Advertisement and Prescribing Practices: Evidence Review and Practical Guidance, 36 J. of Gen. Internal Med. 1390, 1393 (2020); Twesrki, supra note 15, at 1151.
[34] See Psaty, supra note 30, at 1503.
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