RFK Jr. has consistently advocated for a ban on pharmaceutical advertising, as evidenced by his discussions on prominent platforms like The Joe Rogan Experience and his social media posts, including a notable one here.
While this position aligns with his broader criticism of the pharmaceutical industry, such a ban would face significant constitutional hurdles. Pharmaceutical advertising is considered a form of protected expression under the First Amendment, a stance reinforced by legal precedents such as United States v. Caronia, 703 F.3d 149 (2d Cir. 2012). Therefore, it is unlikely that the incoming administration would challenge this constitutional safeguard.
A much more probable concern for pharmaceutical advertisers is a potential shift in regulatory focus under RFK’s leadership at HHS. Recent enforcement actions by the Federal Trade Commission (FTC) for improper use of health data in advertising, signal a broader federal trend towards heightened scrutiny in this area.
With RFK’s appointment, there is now a meaningful possibility of federal initiatives to restrict the use of health data in pharmaceutical advertising. Such measures could draw heavily from the stringent privacy standards of laws like Washington State’s My Health My Data Act, which already imposes explicit consent requirements and robust safeguards for de-identified data. In response, many large pharmaceutical advertisers are opting out of audience-targeted advertising in Washington and other states with similarly restrictive regulations. However, a state-exclusion strategy would be unfeasible at the national level, where audience targeting remains crucial for effectively promoting new, life-improving therapies.
A federal framework mirroring these emerging state laws would fundamentally alter pharmaceutical advertising strategies, particularly as they depend on pseudonymous advertising IDs and real-world health data for audience creation and activation. Such regulations would require the industry to overhaul its targeting practices, prioritizing options that safeguard consumer privacy and completely eliminate the re-identification risk sometimes present in the joining of Health Data to Ad IDs.
Pharmaceutical advertisers need to proactively prepare for this new reality by adopting a nation-wide, privacy-first strategies and investing in technologies that can ensure compliance in all 50 states.
If you want to learn more about why BranchLab is one of the only compliant solutions across the U.S., get in touch.
Josh Walsh is Co-Founder & CEO of BranchLab