WLF Warns on New DTC Ad Rules Violating First Amendment
The Washington Legal Foundation (WLF) is cautioning that the Trump administration’s ongoing crackdown on direct-to-consumer (DTC) pharmaceutical advertising is on a collision course with First Amendment protections. In a new Legal Backgrounder, WLF senior litigation counsel Zac Morgan argues that the agency’s recent wave of Warning Letters, reportedly sent to hundreds of companies alleging “misleading” ads, and rumors of forthcoming HHS rulemaking, point toward a coordinated effort to make broadcast drug ads “longer and prohibitively expensive.”
WLF contends that if HHS secretary Robert F. Kennedy, Jr. proceeds with rumored changes — such as requiring spoken disclaimers to consume 30% to 50% of an ad, mandating black-and-white visuals during risk disclosures, or restricting imagery of consumers — those rules will invite constitutional challenge. The Supreme Court has repeatedly held that commercial advertising, including pharmaceutical marketing, is protected expression, and that the government cannot “burden a speaker with unwanted speech” simply because it prefers a different message.
Any new disclaimer regime would have to satisfy at least “exacting scrutiny,” Morgan writes, requiring the government to prove that new requirements are narrowly tailored and directly advance a substantial interest. He points to the Ninth Circuit’s invalidation of a San Francisco ordinance compelling advertisers to devote 20% of ad space to a government-written warning as an example of courts rejecting broad compelled-speech mandates.
WLF also argues that the administration cannot rely on the Supreme Court’s Zauderer doctrine, which allows certain factual disclosures aimed at preventing consumer deception, because more aggressive requirements would not be “purely factual and uncontroversial.” If the government’s goal is to make drug ads less effective or discourage use, Morgan writes, stricter First Amendment review would apply.
The group further stresses that compelled-speech burdens affect not only advertisers but consumers, citing Supreme Court precedent recognizing that restricting drug-price or drug-related information disproportionately harms the poor, older adults, and people with chronic illnesses who rely on such information to make financial and health decisions.
Morgan concludes that if HHS proceeds with sweeping new disclosure or content mandates, it will face substantial litigation risk: “The government may not suppress or deter the dissemination of views — even the view that the audience should talk to their doctor about a drug—because federal officials find them unpopular or distasteful.”