Although most countries forbid advertising medicine to patients, “direct-to consumer advertising” has flourished in the United States over the past century. Research shows that the practice prompts inappropriate prescriptions and disadvantages generic competitors, leading to adverse drug reactions and increased prescription drug spending.
Nevertheless, a comprehensive regulatory system for direct-to-consumer advertising continues to escape the grasp of policymakers. Regulatory authority has bounced between the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA), where primary jurisdiction now resides. Since the FDA assumed responsibility, the agency’s only major regulatory initiative has been to minimize disclosure requirements for advertisements. Enforcement of violations has been similarly lackluster. This Article examines the history of medical advertising and the consequences of insufficient regulation, highlighting the need for a new regulatory model.
Rather than leaving responsibility with the FDA or simply transferring it back to the FTC, this Article proposes a coordinated regulatory effort. A coordinated approach to oversight of prescription drug advertising should enable more effective regulation, drawing on the expertise of each agency. In this partnership, the FTC would reprise its past role as monitor and enforcer of prescription drug advertising rules, while the FDA would leverage its scientific expertise to assist in evaluating compliance. By combining the resources and capacities of both agencies, this model offers the potential to fill the problematic gaps in the current regulation of direct-to-consumer advertising.