In 2024, then-candidate Donald Trump pledged to take a wrecking ball to the regulatory state — promising on Day One to take the “most aggressive regulatory reduction” in history. He followed through shortly after taking office by signing an executive order titled Unleashing Prosperity Through Deregulation.
And recently, the administration announced, perhaps, the single biggest deregulatory action in recent memory: revoking the Obama-era Environmental Protection Agency “Endangerment Finding” for greenhouse gas emissions.
Under EPA Administrator Lee Zeldin’s leadership, the agency’s decision is a major step toward undoing the disastrous climate regulations that, for more than a decade, have constrained U.S. energy production and economic development. But the EPA is not alone. Across the federal government, agencies have taken the president’s mandate seriously and delivered as promised — with one notable exception.
FDA SLAMMED OVER NEW LOOPHOLE RELAXING ARTIFICIAL FOOD DYE BAN
At the Department of Health and Human Services, something very different is happening. Rather than dismantling the regulatory state, Secretary Robert F. Kennedy Jr. appears intent on redecorating it.
The pattern was on full display recently at the Food and Drug Administration. As the EPA was celebrating its deregulatory victory, the FDA — without substantive review — rejected Moderna’s application to test its new mRNA flu vaccine. In a rare “refusal-to-file” letter, typically reserved for applications lacking critical information, FDA vaccine chief Vinay Prasad argued Moderna’s trial does not meet “the best-available standard of care.” Then, just days later, the FDA reversed course and agreed to review Moderna’s application. Prasad had previously been dismissed from the agency, only to be rehired, following his frenetic decision to halt shipments of a potentially life-saving gene therapy treatment for Duchenne muscular dystrophy, a rare and degenerative genetic disorder affecting young boys. Once again, the FDA reversed itself in another example of the agency’s growing propensity for regulatory whiplash.
HHS’s determination to swim against the deregulatory current does not stop there. Last September, Kennedy announced that HHS, through the FDA, would further tighten its regulatory headlock of the pharmaceutical industry by issuing new restrictions on drug advertising. The trouble for Kennedy is that the First Amendment does not align with his campaign. Drug advertising, which is already heavily regulated, is protected speech and provides meaningful benefits to patients. Yet following the announcement, the FDA issued thousands of warning letters and hundreds of cease-and-desist notices to pharmaceutical companies over ads the agency labeled “deceptive” and “misleading.”
Appearing on the All-In Podcast last month, FDA Commissioner Marty Makary outlined how the agency is moving forward to dismantle the “adequate provision” standard, first established in 1969. This standard, dismissed by Makary as a “loophole,” simply allows advertisers to direct consumers to a complete listing of all possible risks rather than recite each one in the advertisement itself. Under the new approach, drug ads would be required to increase “the amount of information regarding any risks associated with the use of any such prescription drug.”
The choice of words — “any risk” — is a direct attack on the adequate-provision rule. Until now, advertisers could simply point consumers to a document containing the full list of risks, including remote or highly technical ones relevant only to narrow patient groups.
Forcing advertisers to spell out every remote or technical risk would change the nature of these ads entirely, and perhaps that’s the intention. A brief reminder to “ask your doctor” becomes a breathless recitation of improbabilities that physicians already review in a far more relevant setting. At that point, the exercise stops being about informing consumers. It becomes a way to make the ads so long, expensive, or unwieldy that they cease to run — a result the First Amendment does not allow the government to achieve directly.
Commercial advertising conveys information the public is entitled to receive, and the Supreme Court has repeatedly affirmed that the government may not suppress lawful commercial speech simply because it dislikes the message.
FIFTEEN BLUE STATES SUE HHS OVER CHILDHOOD VACCINE SCHEDULE
Conservatives should be clear-eyed about what is unfolding at HHS. Under Kennedy, the regulatory state is not shrinking; it’s being repurposed. Every new standard imposed — whether it’s to block a vaccine trial, override scientific review, or implement new commercial speech controls — can be wielded by a future progressive administration. Following the precedent Kennedy is setting, one can easily imagine a future EPA administrator banning oil and gas advertising for “misleading” the public about the purported dangers of carbon emissions. The regulatory tools Kennedy is building today will not stay in friendly hands forever.
Trump’s deregulatory vision is the right one. It is time for HHS to get with the program before it’s too late.
Jeff Stier is a senior fellow at the Heartland Institute.
