Advertising in the Pharmaceutical Industry
Pharmaceutical companies weren't able to advertise their products until the U.S. Food and Drug Administration ruling made the process legal in 1985. Proponents argue drug advertising helps to educate consumers and may encourage them to talk to their doctors about medication options. Opponents argue that it may mislead consumers. The FDA has enacted several pharmaceutical marketing regulations in an effort to protect consumers while allowing advertising to continue.
By the Rules
FDA regulations for pharmaceutical advertisements apply primarily to prescription medications. However, the agency does not control ads for over-the-counter drugs. Dietary supplement and vitamin ads don't have to be approved and therefore aren't subject to most FDA regulations. Supplement manufacturers still have to caution consumers that statements and claims regarding their products have not been evaluated by the agency.
Pharmaceutical ads must provide the generic equivalent of name-brand drugs so consumers can pursue cost-saving options. Companies are not, however, required to directly state that a generic version of their drug is available. For example, an ad for name-brand drug Vyvanse, a treatment for Attention Deficit Hyperactivity Disorder, might at some point state that "Lisdexamfetamine dimesylate has been shown to..." as a way of incorporating the generic name without recommending it.
Pharmaceutical advertisements can't hint that a drug will improve a consumer's life. Instead, they have to list at least one use for which the drug is FDA approved. Drug makers also can't recommend that their product be used for off-label or unapproved uses. Even hinting at them could be a violation of the law.
While pharmaceutical companies must note common side effects as well as how consumers can report these effects in their ads, there's no law against marketing drugs with serious side effects. Additionally, prescription drug companies have to include a leaflet with their drugs that clearly communicates all clinically verified risks of the medication.
Truth in Advertising
All pharmaceutical advertisements must be truthful. They can't imply that a product does something it does not or give misleading statistics on its effectiveness. They're also prohibited from using misleading pricing tactics. For example, an ad can't say that Medicaid will cover the drug when Medicaid may or may not do so. All advertisers -- pharmaceutical or otherwise -- are prohibited from using bait-and-switch pricing gimmicks, which draw buyers in with a lower price and then encourage them to purchase a higher-priced item instead.
- U.S. Food and Drug Administration: Prescription Drug Advertising -- Questions and Answers
- National Conference of State Legislatures: Marketing and Direct-to-Consumer Advertising (DTCA) of Pharmaceuticals
- Pharmacy and Therapeutics: Direct-to-Consumer Pharmaceutical Advertising
- U.S. Small Business Administration: Advertising and Marketing Law
Van Thompson is an attorney and writer. A former martial arts instructor, he holds bachelor's degrees in music and computer science from Westchester University, and a juris doctor from Georgia State University. He is the recipient of numerous writing awards, including a 2009 CALI Legal Writing Award.