But the administration would likely face legal challenges if it proposed additional restrictions or an outright ban on pharma ads, says Jim Potter, executive director of the nonpartisan Coalition for Healthcare Communications. “The courts view advertising as a form of commercial speech, and they’ve ruled in a series of cases dating back to the 1970s that banning advertising violates First Amendment protections of freedom of speech,” he says. “If the administration wanted to unilaterally impose new rules, they would be on shakier legal ground today than in past years.”
That’s because the US Supreme Court last summer overturned the longstanding Chevron doctrine, which allowed federal agencies some latitude in how they interpreted ambiguous laws. The Supreme Court ruling shifts power from agencies like the FDA to the courts.
Ballreich and Weissman worry that Kennedy’s…
