Lawyers Warn Trump’s Tylenol Move Could Set Risky Legal Precedent

In a press conference earlier this week, President Donald Trump and Robert F. Kennedy Jr., the Health and Human Services secretary, warned against the use of acetaminophen during pregnancy and claimed there’s a “link” to autism.

Trump repeated “do not take Tylenol” during the press conference and said that the Food and Drug Administration will be “strongly recommending that women limit Tylenol use during pregnancy unless medically necessary.”

This so-called link has been debunked in large-scale studies across the world and medical professionals stress that it’s safe for pregnant people to use Tylenol during pregnancy to treat fever and pain ― both of which can have negative impacts on a fetus. But this lack of data hasn’t stopped the Trump administration from repeating this claim, prompting many people to ponder whether the makers of Tylenol could take legal action against the administration for calling out their brand specifically.

While they are not offering specific legal advice, lawyers did have thoughts on what this could mean for Tylenol, Kenvue (the maker of Tylenol) and health policy in this country.

“It’s extremely difficult to sue the government. The government has immunity in most cases. I don’t think there’s any way that they’re going to be able to get damages because the government is basically immune in slander and libel cases,” said Sharona Hoffman, the co-director of the Law-Medicine Center at Case Western Reserve University in Ohio.

However, it is possible for the court to get the government to publicly reverse themselves, Hoffman noted.

“There is the Administrative Procedure Act, which allows you to sue the government for arbitrary and capricious conduct … so, you can ask the court to force the agency to reverse itself or to take back statements,” Hoffman said.

This happened recently when the Department of Health and Human Services and the Centers for Disease Control and Prevention took down important web pages back in January of this year, she noted.

“There were lawsuits under the Administrative Procedure Act, and some judges said, ‘yes, you have to put some of that back because doctors rely on it’ … so, that might be something they could pursue to get the Department of Health and Human Services to stop making those statements, or to reverse those statements, but that’s about it,” Hoffman said.

“I always look at other connections and the same, arguably, lack of process that may have occurred here could be the canary in the coal mine for other issues where the Trump administration or the secretary will come out and make pronouncements based on spurious science or incomplete science or the lack of thorough study,” said Brian Marks, an associate professor of practice at the Pompea College of Business with secondary appointment in the School of Health Sciences at the University of New Haven.

What Tylenol does or doesn’t do could be an “initial testing ground,” Marks noted. Meaning, this situation could inform how other companies respond to any future claims and attacks from the Trump administration.

“At the end of the Biden administration, there was legislation that was passed on a bipartisan basis with respect to TikTok. In fact, that legislation very much was consistent with what the provisions the first Trump administration had sought to address with respect to TikTok … [but] the Trump administration 2.0, they basically ignored the law. So, arguably, that’s a canary in the coal mine,” Marks explained. This pattern of bypassing rules and precedent has continued throughout Trump’s presidency, as he threatens lawyers who investigate him and ends government contracts with those he is at odds with.

The Trump administration’s defiance of public health and longstanding scientific research process could be the start of disruption in the area of health and science, too. “I think this is a harbinger of things to come based on the particular idiosyncrasies and preferences of the secretary of Health and Human Services … and the Trump administration,” Marks said.

Another issue lawyers forecast is the “irreparable damage” for the drug “as people start to believe this,” said Paige Sparks, a civil litigation attorney.

If the highest powers of our government say something, many people will believe them. “While everyone wants to look at the law to rectify, the court of public opinion is going to be equally as important,” Marks said. “You may win the battle in court, but lose the battle of public opinion, and your reputation will be tainted forever.”

This isn’t the first time Tylenol has faced a public event. Decades ago, Tylenol pills were laced with cyanide after they were distributed, killing people throughout the Chicago area. While the pills were poisoned by someone outside of the company, Tylenol still had to face blowback from folks who were afraid to buy the pills. “There was a lot of mistrust, even around the brand … many decades ago,” Sparks explained.

Additionally, lots of consumers are already distrustful of medicine manufactures, Sparks noted, and this could just add fuel to the fire for Tylenol and all acetaminophen medications.

Tylenol is fighting back against the accusations from the Trump administration already with targeted messaging on social media and online. This is a powerful thing brands can do.

“They can also make their own public relations campaign, they can publicize that this is not backed by science, that it’s, in fact, been studied and scientists found no credible connection between Tylenol and autism,” Hoffman said. “Entities can always counter with their own public relations campaign. That’s another route.”

Trump repeatedly warned pregnant people not to take Tylenol during his press conference, and while he did also refer to the active ingredient in the medication ― acetaminophen ― from time to time, he doubled-down on the brand name. And acetaminophen is a medication that many other manufacturers make for pain and fever relief, too.

The Trump administration is “saying Tylenol over and over and over again. I think there’s certainly an argument to make that you can’t unring that bell with the public,” Sparks said. If they had referred to acetaminophen instead, it would be an “entirely different situation,” Sparks added.

But with the frequent mention of the brand, it puts pressure on Tylenol to act so the reputation isn’t tainted forever.