Robert F Kennedy Jr wants to ban drug ads on TV. It wouldn't be easy

Since the late 1990s, drug companies have spent tens of billions of dollars on television ads, drumming up demand for their products with cheerful jingles and scenes of dancing patients.

Now, some people up for top jobs in the incoming Trump administration are attacking such ads, setting up a clash with a powerful industry that has long had the courts on its side.

Robert F. Kennedy Jr., President-elect Donald Trump's choice for health secretary, is a longtime critic of pharmaceutical advertising on TV, arguing that it leads broadcasters to more favorable coverage of the industry and does not improve Americans' health. He has repeatedly and enthusiastically called for a ban on such ads.

Elon Musk, who is spearheading a government cost-cutting effort, last month wrote on X, his social platform, "No advertising for pharma."

And Brendan Carr, Trump's pick to lead the Federal Communications Commission, said his agency could enforce any ban that is enacted. "I think we're way, way too overmedicated as a country," he said.

The push against TV drug ads threatens to dent the revenues of pharmaceutical companies, which can make back in sales five times as much as they spend on commercials, according to some analysts. It could also create uncertainty for major television networks, which bring in substantial revenue from pharmaceutical advertisers trying to reach older viewers, who tend to take more medications.

Though it's not clear how such a ban might happen -- Kennedy has called for an executive order -- any attempt would face an uphill battle. Efforts to modestly restrict drug ads have repeatedly been defeated in the courts, often on First Amendment grounds. The first Trump administration tried to require that commercials mention the drug's price, but a judge blocked the move, saying that it lacked authority from Congress.

"No one's putting the genie back in the bottle at this point," said Dr. David Kessler, who was commissioner of the Food and Drug Administration in the 1990s.

Modern drug ads aimed at consumers began appearing in newspapers and magazines in the 1980s. But for years, they were mostly kept off TV by a requirement that ads naming a specific illness include a litany of information about possible side effects.

In 1997, after Kessler left and amid growing concern that the restriction violated the First Amendment, the FDA relaxed its rules, allowing drug advertisers to briefly summarize the product's risks.

In subsequent years, pharmaceutical companies' spending on TV advertising exploded. In the early 2000s, Merck's TV ads helped make the painkiller Vioxx a blockbuster before it was taken off the market for raising the risks of heart attacks and strokes. More recently, a flood of TV ads have helped generate demand for "Oh, oh, oh, Ozempic" from Novo Nordisk and other powerful drugs that have transformed the treatment of obesity.

The pharmaceutical industry is on track to spend over $5 billion on national television advertisements this year, according to iSpot.TV, a company that tracks ads. The most aggressive campaigns are for newer medications that haven't yet gone generic but compete in a crowded field of similar drugs to reach patients with common conditions such as arthritis and diabetes.

Research has found that the majority of the top-advertised drugs offer little to no medical benefit compared with existing treatments. Many cost tens of thousands of dollars per year.

But some research has shown that TV ads can have counterintuitive effects, such as spurring patients to take an inexpensive generic drug that wasn't being advertised but may be more appropriate. Even many of the industry's most vocal critics see value in some of the ads, like ones that prompt older people to get a vaccine that they would not have otherwise.

Kennedy, however, has nothing positive to say about drug advertising. He contends that drug ads are steering sick Americans toward useless medications, contributing to high rates of chronic disease in the United States.

"They're not making us healthier," he said of pharmaceutical products in an interview this year. "In a true free market, and if we were getting good information, we wouldn't be taking so many of them."

Kennedy, Musk and the Trump transition team did not respond to requests for comment.

Kennedy is fond of pointing out that the United States and New Zealand are the only wealthy countries that do not sharply restrict prescription drug advertisements. Other countries are healthier, he argues, in part because they don't air such commercials.

His critique incorporates two of his favorite villains: the drug industry and large news networks. He has claimed that the TV drug ads function as payments to broadcasters to suppress unfavorable coverage of the industry and its products.

He has complained in particular that television news networks would not give airtime to claims about a link between vaccines and autism. That theory has been discredited by dozens of rigorous studies.

"People like Anderson Cooper, like Jake Tapper, are really pharmaceutical reps," he said last year. He has also falsely claimed that Pfizer pays most of Cooper's salary.

Last month, Musk, another critic of the news media, reposted on X a video of Kennedy claiming that news networks are beholden to pharma advertisers, writing, "Does seem to create a conflict of interest."

Emily Kuhn, a spokesperson for CNN, said, "Advertisers play no role whatsoever in influencing our content or story selection."

Advertisements from the makers of prescription and over-the-counter drugs accounted for half of ad spending this year on five popular nightly news shows on major networks, according to iSpot.TV.

At an investor conference this month, Steve Tomsic, an executive at Fox Corp., downplayed talk of a potential ban on pharma ads. He said such ads represented a "low single digit percentage" of the company's overall revenue. (Television networks rely on a variety of sources of revenue, including distribution fees and online advertising.)

If Kennedy wins Senate confirmation to become health secretary and pushes to ban drug ads, he could find allies among doctors. The American Medical Association called for such a ban a decade ago and supported the first Trump administration's failed push to mention drug prices in ads. He could also find common cause with Americans who love to complain about pharma ads on their screens.

Some researchers who study drug promotion said that relative to TV ads, other types of pharmaceutical marketing -- like influencing doctors directly -- were a bigger business and less regulated.

Last year, pharmaceutical representatives distributed nearly $31 billion worth of free samples to doctors' offices, a strategy aimed at getting patients to try their products. Drugmakers spent another $8 billion for representatives to meet by phone or in person with health professionals, plus another $2 billion on meetings and events, according to IQVIA, an industry data provider.