Why FDA Is Sluggish in Regulating Illegal Promotion of Products on TV?
(Thursday, May 5, 2022)
Last week Fox News commentator Tucker Carlson aired a “promo for a show” that promoted a medical device for male sexual enhancement based on exposing the testicles to red light. Although the “news” was quickly debunked and subjected to memes, it is not hard to imagine fans of Tucker Carlson to still consider the information credible and use the device. Mr. Carlson did not release any corrections for the “promo”. This case is not an outlier. Medical product manufacturers frequently and easily use “news” outlets on TV to make dubious, and many times outrightly false claims about their products, mostly without any negative consequences to their actions from the FDA or even FTC. Such outrageously inaccurate product promotions were originally popular on late night timeslots but in recent years, popular daytime and prime-time shows have made these promotions available to far larger audience and have led to much bigger financial benefits to the producers of such products and the TV channels that promote them. Not only do such “news” stories get important airtime on popular shows, but the videos stay perpetually available on YouTube and the websites of the products where they are used with impunity for marketing purposes. Since these product promotions are clearly advertisements, as the promoters buy these airtimes, the lack of enforcement actions by the FDA is hard to understand. The FDA regulations do not require pre-approval of promotional material for non-prescription products, and FDA actions for false and misleading advertising is usually reserved for products that become widely used or for which there is documented safety issues. Since most of the products promoted through the above practices are usually so outrageously inaccurate in their claims, that they likely do not attract wider appeal and likely (hopefully!) do not injure the users and hence tread the fine line of non-compliance and non-importance. We only hear a few cases when they are promoted on popular shows, but this kind of false and misleading advertisement is quite common. One would expect that at least FDA would go after the cases that become well known, like this one, but to date, there is no public evidence of FDA even contacting the makers of the “testis stimulating red light”. The Tucker Carlson “promo” attracted a commentary by the Journal of American Medical Association (JAMA) which also contained full details of the event. Such promotions exist sheerly due to the inability of the FDA to pursue regulatory action for such violators. While FDA could blame the lack of enforcement on the lack of the enormous resources needed to monitor them, but it would be false. There cannot be any lower hanging fruits for the enforcement staff, after all the promotors are on video making those claims. FDA going after even a few of these violators would have a chilling effect on these promotors who are getting bolder and the “news celebrities” who are monetizing the trust of their audience. Unfortunately, there are no laws to penalize the commentators and news outlets who air these promotional videos falsely as “news”. To their credit. Mr. Carlson and Fox News has wiped the recordings of the “promo” from their websites while the videos remain available at other locations on the internet. This false and misleading promotion of FDA-regulated products will continue as there is no public evidence that the FDA is interested in acting against them.
Dr. Mukesh Kumar
Founder & CEO, FDAMap
Linkedin: Mukesh Kumar, PhD, RAC