Katherine O’Malley
Associate Editor
Loyola University Chicago School of Law, 2025
Only two countries in the world allow direct to consumers advertisements for pharmaceutical drugs: United States of America and New Zealand. The United States is currently facing a drug overdose epidemic, promoting both the FDA and DEA to intensify efforts to combat misleading dangerous drug advertisements. Social media plays a huge role in this dilemma. Meta, the parent company of Facebook and Instagram owns two of the most popular social media platforms. Recently, the federal authorities are investigating Meta Platforms regarding its potential role in illegal drug sales on its platforms. U.S. prosecutors in Virginia have commenced the probe by issuing subpoenas and conducting inquiries into whether the platforms have facilitated or profited from illegal drug sales. This marks the beginning of a criminal grand jury investigation, with the help of the Food and Drug Administration (FDA). The FDA has declined to comment about this ongoing investigation.
COVID-19 changed the playing field
The investigation was triggered by unregulated and illegally operating online pharmacies that advertise on platforms like Instagram and Facebook. Throughout the pandemic, there was a boom in online commerce across a wide array of products. More specifically, illegal drug operations adapted to this trend by incorporating the dark web, encrypted messaging services, social media, and popular e-commerce platforms for both sales and communication. This adaptation has further facilitated access to illicit drugs, especially in light of the overall increase in drug usage during COVID-19 pandemic, potentially leading to a crisis. Concurrently, there was also a boom in legal online pharmacies which created the opportunity for illegal “rogue pharmacies” to pop up on the internet too. As a response, the FDA began issuing “Internet Pharmacy Warning Letters” which discloses the companies and provides their URLs and issue date of each warning letter from the FDA.
Facebook’s advertisement game
Facebook has advertised for online stores selling illegal drugs such as LSD and hallucinogenic mushrooms and initially the company did not take down such ads because they did not violate their advertising policies. In a statement to the National Post, Meta clarified that its policies prohibit ads promoting the buying and selling of pharmaceutical and non-medical drugs. This debacle is particularly noteworthy because Facebook relies heavily on advertisements, with approximately ninety-eight percent of its revenue generated from advertising in 2020. According to a four week study by the Algorithmic Transparency Institute, approximately twenty companies posted more than 2,100 advertisements on Meta’s platforms that “described benefits of prescription drugs without citing risks, promoted drugs for unapproved uses or featured testimonials without disclosing whether they came from actors or company employees.” Among the advertised drugs were ketamine and testosterone both subject to strict FDA regulations due to their risks of abuse. This is even more concerning when one study suggests that forty percent of kids under the age of thirteen use Facebook and Instagram.
Navigating regulatory compliance and legal liability
The Communications Decency Act stipulates that “interactive computer services” or online platforms are generally not liable for third party posts, with explicit exceptions to obscenity and sexual exploitation of children. The goal of this act is to promote a competitive free market and encourage technological development. Interestingly, this act states that this law does not affect the enforcement of any other Federal criminal statute. Yet Snapchat escaped any liability in 2020 when one of its users died from a pill he bought on their platform. Despite major platforms banning drug-related sales, “[t]he Organization for Social Media Safety reports that its researchers connected with drug dealers on multiple social media sites in under three minutes. The Drug Enforcement Administration (DEA) started the “one pill can kill” campaign to educate users and the public about this new phenomenon, where drug traffickers utilize social media.
To tackle this issue, the DEA also issued a letter to e-commerce companies concerning the sale of pill presses used in the manufacturing of fentanyl pills. These pill press machines play a crucial role in the production of fentanyl pills. The DEA emphasized that these pill presses and stamps being offered for sale on e-commerce platforms are “regulated persons” under the Controlled Substances Act. This classification means they are “subject to the recordkeeping, identification, and reporting requirements of 21 U.S.C. § 830. However, relying solely on warning letters may not be sufficient to combat this problem effectively.
The FDA has issued similar warning letters but they are not enough. One critical limitation in regulating pertains to the FDA’s role. While the FDA oversees drug-related advertisements, their primary focus is on disclosures and disclaimers and not of the actual sale of the drugs. It is imperative for the FDA, DEA, and legislative bodies to collaborate and address this escalating crisis as online illegal drug sales continue to rise with the help of these social media platforms.