FDA Policy/General

Modernize DTC Ads with QR Code: WLF

Congress could bring direct-to-consumer drug ads into modern times by requiring them to show a QR code for a few seconds on the TV screen so consumers could use a smartphone to access a large-font brief summary or major statement. That’s the recommendation in a Washington Legal Foundation Legal Backgrounder by senior litigation counsel Zac Morgan.

Morgan notes that 91% of American adults now own a smartphone, including 78% of seniors and 90% of Americans aged 50-64, the target audience for most prescription drugs. “A QR code would distribute the information quickly (and in a static format, which a viewer can go back through for as long as she wishes), while preserving nearly the entirety of the commercial communication for the private speaker,” Morgan writes. “That serves both the federal government’s asserted interest in ‘transparency, an extra-constitutional value,’ while maximizing speech, a constitutional right.”

The backgrounder says the Trump administration and HHS secretary Robert F. Kennedy Jr. want to expand the so-called major statement of side effects and contraindications, possibly to do something like specifying that spoken word disclaimers take up a specific percentage of an ad, perhaps from 30% to over 50%, or to direct the visuals of ads during the reading of the side effect disclaimers, such as requiring black-and-white imagery or banning visuals of happy, active users.

Morgan says Congress would run afoul of the Supreme Court if it tried to legislate Kennedy’s proposals.

“While it would be preferable to abolish the compelled speech rules entirely,” he says, “this isn’t a zero-sum game. Congress can still preserve the substance of the Federal Food, Drug, and Cosmetic Act’s (FFDCA) disclosure regime while expanding freedom of speech.” Thus, he says, Congress could amend the FFDCA to recognize the adequate provision, which says that ads must contain a provision for consumers to learn more about the drug elsewhere.

Even better, he concludes, would be to modernize the disclaimer rules to account for technological changes, such as the QR code.

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