
Next in Media spoke with Simulmedia CEO Dave Morgan, about the new Secretary of Health's plan to ban pharma ads on TV, the many potential obstacles, and what such a move would do to the TV ad market.
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Mike Shields
Freemantle, one of the world's most prolific creators and distributors of premium content such as America's Got Talent, the Price Is Right, and Family feud, reaching over 100 million US households, leverages Elemental TV's AI powered one audience platform to offer advertisers a zero hop access to its extensive library of iconic titles with enhanced transparency and precision targeting via curated audiences. Discover how@elementaltv.com OneAudience that's E L E M E N T A-L T V.com One Audience this week on Nexty Media, we have a special episode focused on.
Dave Morgan
A recent report I worked on with.
Mike Shields
My partners at Triple Lift in which we asked the question, what happens to the TV ad market if RFK Jr really bans pharma ads? I encourage you to check out the full report. It's in my newsletter, a triple IFT's.
Dave Morgan
Blog, and it's being featured in Adweek.
Mike Shields
In the meantime, I chatted with one of the folks who helped me with the research, Silent Media CEO Dave Morgan.
Dave Morgan
Dave is the perfect guest this week.
Mike Shields
Since he both knows the TV business well, but is also a media lawyer by training. So he kind of helps me break down what our RFK junior can and can't do and just what would happen in the TV business if this wall actually went forward. It's a fascinating topic, so let's get started. Hi everybody. Welcome to Next in Media. I'm Mike Shields and my guest today is Dave Morgan. He's the CEO of Silent Media. Hey, Dave, thanks for being here.
Dave Morgan
Hey, Mike. I'm excited to be here.
Mike Shields
Excited because it's the perfect time to talk to you because we want to talk about RFK Jr. Becoming the new Secretary of Health and Human Services and his pledge to potentially ban pharma advertising. And you know both the TV market really well and you also know the legalities of the media world. So I'm glad to talk to you. I guess let's start with, you know, with all things Trump administration. You have to take everything with. There's a lot of Fs here. We don't know what is bluster, what's real, what they're going to follow through on or not. But let's start with before what this would do to the TV market. Why would this be so hard? It seems like this would be very challenging. Maybe you could explain people the regulatory basics of television and then maybe get into why this one would be challenging.
Dave Morgan
Sure. So there's a couple pieces I'll. I'll build on to layer them so it's not uncommon in areas of regulated products to have some corresponding regulation of advertising that goes with them. And most drugs and pharmaceuticals are regulated by the Food and Drug Administration, which is an agency with some ostensible independence. But it is basically underneath the purview of HHS, which RFK Jr. Is now running. And you know, it's, it's a hundred, almost 100 year old agency. It grew out of a novel, quite frankly, the Jungle and the Pure food. I can't remember the name of the act, but the idea was we realized the importance of being able to regulate food and drugs because they were things where you had a lot of bad products coming in. And so it's always had really important work. And sometimes advertising has been regulated by that organization as part of it. But the moment you start getting into regulating advertising, you start hitting a number of tripwires from a legal and constitutional basis that are really important. And as you mentioned, I, before becoming an ad tech entrepreneur, I was a lawyer. And I particularly one of the areas I practiced was media law. So I used to advise newspapers and other media companies on issues like advertising and acceptability standards. And so one of the first things is that you have a pretty high bar just constitutionally because if you deny types of advertising to advertise, you deny the publication of products that are being able to be supported in them. So you have issues of free press initially right off the bat. If you don't have advertising, it's hard to have an open and free press. So there's always a tension to want to permit advertising. It is a form of speech, it's commercial speech. It has a different level of scrutiny to it, but it does have, there are rights to having commercial speech somewhat unfettered unless there are really strong reasons to block it. And then depending on the areas where you try to stop it, there may already be a regulatory framework that is there, such as in this case, television. And television is not under the purview of hhs, it's under the purview of the fcc.
Mike Shields
Right. That's where this gets really complicated.
Dave Morgan
Yeah. And so the fcc, Federal Communications Commission has control over users of broadcast licenses, radio and television, and also in the Communications act, certain parts of cable. And so there are, there are a number of regulations about it. And people might famously remember the Janet Jackson wardrobe malfunction where Fox ended up paying a multimillion dollar fine for something that was, that was determined by the FCC as indecent, which ironically, if it had run on cable, not broadcast, which to most people there's no difference to the viewer. It would not have had the same issue. And in today's world, streaming, where is explicitly, things delivered in content delivered over the Internet are explicitly exempted from, from federal regulation.
Mike Shields
We're talking about over the airways is where the distinction is, really.
Dave Morgan
Right. Yeah. You have over the airways and you have certain things within cable, certain, but much, much looser. And then you have basically in streaming, you have the wild, wild west. So if in fact, RFK Jr tries to impose a ban, he's going to have to work through the fda. We don't know who that person is going to be in charge yet. But I think it's a bit ironic that there was a resignation by the food administrator of the FDA because he just lost 89 staff that were cut.
Mike Shields
Right. Because this happened in the middle of the whole Elon Dodge, fire everybody thing, which is kind of crazy.
Dave Morgan
Yeah, right. So if you want to expand your regulatory framework, you need not less people, you need more people. So if he actually does try to do it, he's going to have to staff it significantly because this is a really big area. You can't. You can't sort of squash billions of dollars of spend with, you know, thousands of dollars of work. So it's going to have to. It would have to be threaded through the fda, it would have to be threaded through the fcc. It would have to get past potential constitutional issues.
Mike Shields
Someone's going to challenge this in the courts, presumably.
Dave Morgan
Right, exactly. And when we saw the ftc, the Federal Trade Commission, and some states try to impose privacy regulations on digital companies for their use of anonymous information to better target ads in pharmaceutical cases. There's actually a court decision out of an appellate court in Connecticut that ruled that actually it is a benefit to consumers to be informed of potential drugs available to them to help cure their conditions. And so that court determined, at least for Connecticut, that the attempts to regulate privacy do not outweigh the benefit to consumers of having better health information. Think about this, because historically, before we saw much direct to consumer advertising, all of the marketing in the pharmaceutical industry was done to the provider. You know, you basically pay doctors to be your experts. You pay them, you know, whatever, 50,000 a year, and they're your expert. You know, what do they do to be an expert? It means you get to fly them for golfing events, like four times a year to the Bahamas to speak at a doctor event, which of course is just other experts like them. It's like eight of them or 15 of them, like talking to each Other in the morning of a breakfast before they play golf together. So you own those docs. And the point of direct to consumer advertising was well let's go around that.
Mike Shields
Yeah, let's go right to the people.
Dave Morgan
Yeah, let's go right to the people. Let them know what's available for them. Let them know that there isn't just this one drug. Let them know there may be three different drugs from different suppliers that do different things and maybe have different side effects because we all know those side effects. Disclaimers and for sure there are some drugs is really important. So for example, one of the things that was cited in the Connecticut case and that case, I think it's about 10 years ago or more talked about diabetes and how it was critically important for the diabetes and the diabetic population to have this information of potential medical treatments and not to give it to them. Because let's also recognize that television, it overserves people of lower income and particularly people of protected races and ethnicities which given the, you know, the, you know, the significant like preponderance of, you know, of diabetic conditions and African Americans, you got to get to them. And they don't have the access to doctors that you know, the rich white people in suburban and urban communities have. So there's going to be really, really strong public policy discussions. And then of course you have the fact that, you know, and this is the practical part, the, the pharmaceutical lobby is extraordinarily powerful. So and the studies show and you know, I mean I know this from my own company Insomn Media, but this is something that's very well publicized now. Pharmaceutical advertising is very effective. There's a reason. I mean those are empirical companies that follow experimental design and scientific method and like what they do and they know that the advertising works. They know that it helps cause patients to ask their doctors and many times they ask their doctors about a condition that the doctor didn't even hadn't even tested for to know they might have.
Mike Shields
There is the worry that I think RFK would say, well this is going to you, you scare people, you hype things up.
Dave Morgan
You.
Mike Shields
But what you've seen is the more informed public gets more, asks better questions and gets better health outcomes because of this.
Dave Morgan
And think about this. Given RFK Jr's public positions on centralized top down decisioning around vaccines, for example, how does he square that?
Mike Shields
Right? He's pro, like do your own research and then he's saying, you know, don't do it.
Dave Morgan
Yeah, and we're not going to Give you the information and which means of course, that only the most affluent, that have the best doctors, that have the most access to doctors, that also earn the best zip codes they can get. And also the other thing is too, let's be clear, the pharmaceutical companies need to reach them. So they're just going to shift their budgets to someplace else. So if it's not on tv, then more money for search, more money for social advertising.
Mike Shields
I want to go back to the. What would happen to the market? The obvious question people are going to ask is, well, Dave, didn't this happen with cigarettes? Why is this different? How did that work? Could that just follow the same path? Do you, can you kind of contextualize that store?
Dave Morgan
Well, a couple things relative to cigarettes. The first thing is we were dealing with a product that had been determined by the government and all the independent researchers as a very harmful product to consumers. So first this was basically to say we have a product that's harmful. We are going to particularly focus in these media where we have more control over like in the broadcast media and we are going to remove them from advertising. And as you also know, there was a fair amount of product placement in the advertising business that had been done for a long time. And so they were eager to get to that too because they were trying to make the cigarettes cool in different movies and TV shows. And they made it clear to Hollywood, hey guys, we're not only taking it off tv, but we want this stuff.
Mike Shields
Yeah, you need to work with us here. Right.
Dave Morgan
Right. Now there were the beneficiaries with the magazine industry because they got those ads. But first the product was deemed harmful, obviously by law and government decisions and research. Everything that has been sold and has been actually regulated and approved for treatment by the FDA has been determined not just to not be harmful, but to be helpful. Right.
Mike Shields
They've been through. So it's a pretty big difference.
Dave Morgan
Yeah, yeah, it's like totally opposite. It's not even like neutral. It's like, no, this is actually helpful, not neutral. So right. Right off the bat you get to that and you know, and we've seen some attempts for some other things like alcohol. Yeah.
Mike Shields
There were no booze ads for a period of time. I don't know if that was by choice or I believe that was not law.
Dave Morgan
It was not necessarily law because alcohol is a harder one because alcohol is regulated at the state level. And so it was a bit of a, what we would have said in the old days, a gentleman's agreement in the smoke filled rooms to Avoid the liquor ads to avoid sort of making their liquor seem more attractive to people either because they don't want people to drink too much. So there we have a product that is deemed, not necessarily. It's certainly not been determined to say, hey, this is a helpful, great drug. We want you to drink it. So it would have been seen as neutral, but recognition that it's overuse was less neutral and somewhat harmful, and it's used by younger populations that had already been determined to be harmful. So it also at least sat. It wasn't in the fully harmful, but it sat there, which is once again quite opposite what we're talking about in pharmaceuticals.
Mike Shields
All right, so let's just play the argument out. Let's say that he is going. He's able to get both the FDA and the FCC to coordinate and he feels like get the enforcement, he could fight this in the courts. Let's say this ban actually happened, which would probably take a long time, I'm assuming. What would this do to the TV market? I've talked to people that, you know, this is like 10, 12% of the market. This could really hurt. Assuming the switch was flipped immediately, what do you think happens to the TV market and maybe where does the money go and who comes along?
Dave Morgan
Well, devastating would be too strong of a word, but, you know, significant would be too weak. So it would be a really bad thing for the TV industry and it would be a really bad thing for some parts of it, particularly the broadcast side of it, because a lot of those ads are bought at the local station level, because a lot of the conditions tend to have some differences by geography and some coverage. So you do see a milder form, let's say, of targeting, but it would be very, very devastating. And if it was done quickly, let's not forget that 2025 has neither an election or an Olympics. So.
Mike Shields
So that's already a vulnerable time for this business nation.
Dave Morgan
Groups that are going to lose 4 or 5% of their audience. So they're going to have a degradation of audience volume to sell. They're going to have a difficult time moving up price. And then they don't have an election, Olympics. And so this could truly be devastating for companies. And one of the reasons that I think, yeah, which obviously will have a lot of political ramifications, because that's where the political power is and the local station groups, because that's where the local congressmen get elected and have their pictures shown. So it would absolutely hurt the TV industry, It would hurt the broadcast side of it. Which is much worse than the cable side, but not, I mean, cable would have significant impacts too. Then the question is what happens to streaming? If you're Comcast at NBC Universal, you might say, hey Dentsu, when you place these ads here, we're going to give you a comparable audience. Maybe not exactly the same kind of thing, but maybe with a little bit better precision targeting on Peacock.
Mike Shields
I mean, again, just to be clear, he won't be under current law, at least you wouldn't be able to ban those ads from streaming.
Dave Morgan
It'd be tough. It would be tough because now he's running into this other hurdle of the capacity to regulate online ads, which is a whole can of worms, a whole can of words. And let's also not forget that the Child Privacy act, the COPPA, is still largely voluntarily complied with. And there's questions about if it was really pushed super, super hard, whether if it really got to the Supreme Court, that the court wouldn't say you can't actually regulate any of the stuff that's there online that way, other than the core message being, let's say, deceiving or things like that. So his capacity to go after, to go after in streaming is a significant bar. And then what happens is, let's just say sort of like we've seen in other times in media, like what we saw like in let's say more nudity. It's all going to move like, you know, you'll see those ads will move to this, move more to streaming services and digital companies which of course immediately now are going to more affluent, more white dominated media and less broadly accessible audiences that are, that are more likely to contain some of the protected classes.
Mike Shields
Now the, now the question, I guess depending on the drug, you know, it's a lot of those are targeted towards older adults. Right. Streaming is younger generally speaking. And there's, I used to say there's less inventory, but there's more now than there used to be. But it would be hard to absorb all that money.
Dave Morgan
Yeah, I mean how many of the drugs and the volume of drugs that are consumed by people over 75, it must be half or two thirds of pharmaceutical by cost. I'm just guessing. I mean, directionally it's a really significant number. And so they're the ones that are not always able to get to the doctor as easily. They're the ones that sort of need to be prodded a bit. So if you take it off tv, you're not going to have any kind of way to get comparable reach to them on Any other media. Yeah.
Mike Shields
So you're gonna have to, like you said earlier, it's. You're gonna have to go to search and Social and maybe out of home. And that's. I don't know if you can you accomplish all the things you want to do there.
Dave Morgan
You can't and you cannot. And the problem with the out of home is you can't. There's no way in the world that you can actually get any kind of targeting. So the effectiveness of it would be incredibly broad. You know, and the thing is, think about this. Without the voiceover stuff, without audio, like you have two people sitting, like on a beach in chairs, like sort of looking at each other. You have no idea what the ad is actually about, like for Ozempic or something. So what would happen is it is not replaceable. I mean, it's a simple, simple answer. If there is no adequate replacement, which means that information, that advertising and marketing capacity goes away. And then what will happen is they wouldn't spend the money if it didn't give them a strong ROI. It does. And estimates are something, you know, 100 to 300% as an industry. So you're going to see a difficult time launching new drugs, which is going to then give more power to incumbents. We know that most new drugs typically are more targeted, tend to have fewer side effects, tend to go after conditions that have not been solved for. So I think not only is it going to be difficult from a regulatory standpoint, whether. I think it's going to be very difficult from a public policy and public perception standpoint. And then you have to question whether a Trump administration, where he seems to like his popularity, but his moods and minds change constantly if he doesn't drop at the moment, it gets a little difficult and challenging, particularly given the fact.
Mike Shields
That the stock market, things like that.
Dave Morgan
Yeah, exactly. The stock market in his political base is powered by a lot of. Some of the companies that are going to. Are going to lose here.
Mike Shields
Like you said, it's so hard to read because on the, on the one hand you can say this is like, why would the administration want to be anti business? There's a lot of money here. Right. And anti health, because if you can't reach people, those are two things you would seem to be against. But then they also have this element of screw you to the institution, screw you to the lobbyists. Screwed everybody. I'm going to break things. It's just very hard to read where they're. What's going to drive them.
Dave Morgan
Yeah, I think, I think the one thing we have to recognize is that given the, you know, sort of the state of electoral politics today, and particularly how this last election was won, there were massive, massive amounts of corporate donations went into the Trump campaign. And so there's no way in the world that you can imagine that there is not some blowback that would be there from.
Mike Shields
Right. We think it's the little guy and everything, but those, those people got pressure.
Dave Morgan
Yeah, exactly. And the point is like, you know, if, like, just, let's just look at Fox. You've got like, I mean, Fox News on cable and like, look, they do get. Because they have an older audience and, and on broadcast, too.
Mike Shields
It's a great point. Rupert's not going to be like this. No.
Dave Morgan
And, and so don't think that, you know, you know, and anyone that's trying to exploit a more transactional notion of public policy, that you're not actually training all of your ecosystem, like your partners and political supporters to do the same thing, to say, hey, you just took away a couple billion dollars out of our industry and hundreds of millions of dollars out of my particular company's pocket. How with you, you may get some bad headlines now.
Mike Shields
Last, last thing, Dave. And there's so many things we could unpack here. Is there an opportunity, if this money evaporated from television, could this bring in, you know, there's. TV often has sometimes like saviors come along like crypto or.com money or money out of nowhere. You can't guarantee that.
Dave Morgan
But I don't see an unintended consequence that opens up a new budget. So like, like if a new budget might open in some other area, like crypto, that's going to open up no matter what, it won't be more likely to open up because we're not, they're.
Mike Shields
Not waiting for something to happen.
Dave Morgan
Right. No. And I don't think that non pharma treatments of like, you know, whatever those might be, yoga, acupuncture, you know, health, riding your peloton. I don't think we're suddenly going to see billions of dollars come from them as replacements.
Mike Shields
No.
Dave Morgan
To pharma. Because the point is we're, you know, I mean, I'm not, we're not hearing from a policy standpoint that the pharmaceuticals that are approved are bad and shouldn't be taken. All we're trying to. And so this is, this is the part that's really quizzical. It's like, okay, then you're just saying consumers aren't actually smart enough or shouldn't Be actually communicated directly to. About things that they should ask their doctor about. Because that's pretty much what every one of those ads says, you know, ask your doctor.
Mike Shields
Yeah. It's not like a bunch of people are getting a whole bunch of drugs that are dangerous that they don't need because of these ads. That's hard. It's hard for me to see that.
Dave Morgan
Right. Yeah. And if they try to present that data, then we'll see it. And then that's a different argument. But then that actually speaks to the regulation of the pharmaceutical and their delivery. Because if, in fact, people are getting drugs they shouldn't get legally that they should not get, well, that's already under the fda. So what's the FDA doing in.
Mike Shields
Right. That's not the TV ads. That's. Something went wrong in the process.
Dave Morgan
That's a docs. That's a docs problem. Right. That's what the doctors, not the ads. So if in fact, that's the case, then there's already. That already speaks to a different. A different solution to it, which isn't advertising.
Mike Shields
Well, Dave, there's a million ways we could go here. Thank you so much. Really important conversation, and it'd be great to talk to you. Thank you so much for your time here.
Dave Morgan
Well, you're very welcome, Mike. And I'm really glad that you're addressing this topic. It's so important. And, you know, I would say, who knows? I mean, one of the final physics, this, these kinds of things, this could be like a domino effect if in fact something like this was put forward. Because then it would be what's next? What other thing is it just someone determines as a public policy that we don't want consumers to know as much about as they currently know from advertising.
Mike Shields
Right. You give them all of a sudden, give them confidence and get these things kind of pushed and who knows whether we take it.
Dave Morgan
Exactly.
Mike Shields
All right, Dave, have a great one. Thanks so much.
Dave Morgan
Oh, you're welcome. Thanks again to my guest.
Mike Shields
This week's Simul Media is Dave Morgan, and my part is at Elemental tv. If you like this week's episode, please take a moment to rate and leave a review. We have lots more to bring you, so please hit that subscribe button. See you next time for more on what's next in media. Thanks for listening.
Next in Media - Episode Summary: "How RFK Jr. Could Blow a Hole in the TV Ad Market - And Why it Probably Won't Happen"
Release Date: March 4, 2025
Host: Mike Shields
Guest: Dave Morgan, CEO of Silent Media
In this compelling episode of Next in Media, host Mike Shields delves into the potential ramifications of Robert F. Kennedy Jr.'s (RFK Jr.) proposed ban on pharmaceutical advertising on television. Joined by Dave Morgan, CEO of Silent Media and a seasoned media lawyer, the discussion navigates the complex intersection of media regulations, legal hurdles, and market dynamics that such a ban would entail.
Mike Shields introduces the topic by referencing a collaborative report with Triple Lift, exploring the question: "What happens to the TV ad market if RFK Jr. really bans pharma ads?" (00:36). Dave Morgan elaborates on the premise, highlighting RFK Jr.'s position as the new Secretary of Health and Human Services and his inclination toward restricting pharmaceutical advertising.
Dave Morgan underscores the intricate regulatory landscape surrounding pharmaceutical advertising. He explains, "When you start getting into regulating advertising, you hit a number of tripwires from a legal and constitutional basis that are really important" (02:14). The Federal Communications Commission (FCC) governs broadcast licenses, making any regulatory changes a formidable challenge. Morgan emphasizes the autonomy of the Food and Drug Administration (FDA) under the Department of Health and Human Services (HHS), yet points out the constitutional protections for commercial speech that complicate potential bans.
When drawing parallels to past advertising bans, Morgan notes significant differences between pharmaceuticals and cigarettes. "The first thing is we were dealing with a product that had been determined by the government and all the independent researchers as a very harmful product to consumers" (11:22). Unlike cigarettes, which were unequivocally harmful, pharmaceuticals are regulated and deemed beneficial, presenting a stark contrast that makes a pharma ad ban more contentious and complex.
Discussing the direct effects on the television industry, Dave Morgan states, "It would be a really bad thing for the TV industry and it would be a really bad thing for some parts of it, particularly the broadcast side of it" (14:20). With pharmaceutical ads constituting approximately 10-12% of the TV ad market, an immediate ban could lead to significant revenue losses, reduced audience sizes, and challenges in ad pricing. The absence of these ads would particularly hurt local broadcasters, which rely heavily on targeted pharmaceutical advertising.
Morgan anticipates a substantial shift in advertising budgets away from television to digital platforms. "They're just going to shift their budgets to someplace else. So if it's not on TV, then more money for search, more money for social advertising" (10:17). However, he expresses skepticism about digital alternatives fully compensating for the loss, especially in reaching older demographics who primarily consume TV content.
The discussion touches on the broader public policy implications and political backlash such a ban might trigger. Morgan highlights the influence of the pharmaceutical lobby and the potential court challenges, noting, "Pharmaceutical advertising is very effective. There's a reason... they know that the advertising works" (08:19). Additionally, he raises concerns about the administration's motives and the possibility of unintended consequences, suggesting that political pressures could mitigate or reverse the proposed ban.
Exploring how the market might adapt, Morgan is pessimistic about viable replacements for pharmaceutical advertising on TV. "If there is no adequate replacement, which means that information, that advertising and marketing capacity goes away... it would be very difficult from a regulatory standpoint" (17:40). He doubts that alternative advertising avenues like out-of-home media can effectively replicate the targeted and informative nature of TV ads, especially for reaching demographics with limited access to healthcare resources.
In wrapping up, Dave Morgan expresses concern over the domino effect such regulatory changes could initiate. He warns, "This could be like a domino effect if in fact something like this was put forward... what next? What other thing is it just someone determines as a public policy that we don't want consumers to know as much about as they currently know from advertising" (23:47). The episode concludes with a consensus that while the proposed ban could have profound impacts on the TV ad market and pharmaceutical advertising, numerous legal, regulatory, and practical barriers make its implementation unlikely in the near future.
Dave Morgan (00:54): "Dave is the perfect guest this week... he both knows the TV business well, but is also a media lawyer by training."
Dave Morgan (02:14): "When you start getting into regulating advertising, you hit a number of tripwires from a legal and constitutional basis that are really important."
Dave Morgan (11:22): "Unlike cigarettes, pharmaceuticals are regulated and deemed beneficial, presenting a stark contrast that makes a pharma ad ban more contentious and complex."
Dave Morgan (14:20): "It would be a really bad thing for the TV industry and it would be a really bad thing for some parts of it, particularly the broadcast side of it."
Dave Morgan (23:47): "This could be like a domino effect if in fact something like this was put forward... what next? What other thing is it just someone determines as a public policy that we don't want consumers to know as much about as they currently know from advertising."
This episode provides an insightful analysis of the potential upheaval in the TV ad market should RFK Jr.'s proposal to ban pharmaceutical advertising come to fruition. Through the expertise of Dave Morgan, listeners gain a comprehensive understanding of the legal intricacies, market dependencies, and broader societal implications tied to such a significant policy shift.