An Attack on One is an Attack on All

March 10, 2017

Earlier this week, ANA and other advertising industry groups submitted a letter to the Oregon State Senate’s Committee on Health Care to oppose a bill that would impose a mandatory disclosure requirement on all direct to consumer (DTC) pharmaceutical ads that appear in the state. Senate Bill 792 would require manufacturers to disclose the wholesale price paid by pharmacies (or the manufacturer’s list price under an amendment from the sponsor) in all ads for prescription drug products. This bill raises very serious First Amendment and interstate commerce concerns.  

On the surface, this bill appears to solely target the pharmaceutical industry. However, state government overreach in one advertising sector could quickly bleed over into other product and service categories. The Oregon legislation, if passed, would set a very dangerous precedent for the advertising of a wide range of products and services that legislators for some reason determine should be treated as “controversial.” Furthermore, this legislation could create a ripple effect. There are more than 30,000 state and local governments in the U.S., and if these types of restrictions prove sustainable in one state, there almost certainly will be attempts to extend them to other regions as well.

ANA, for example, is already involved in court cases challenging ordinances from San Francisco and Berkeley, California which impose new disclosures in ads for sugar-sweetened beverages and cell phones, respectively. In the San Francisco case, ANA filed an amicus brief in opposition to the city’s plan to require health warnings on ads for sugar-sweetened drinks that contain more than 25 calories from sweeteners per 12 ounces. San Francisco’s ordinance also requires that health warnings take up to 20 percent of the space on certain ads for these products. Oral arguments in this case, which is being spearheaded by the American Beverage Association (ABA), will be heard on April 17, and ANA will be actively monitoring any developments. In Berkeley, the city is imposing a rule that would require safety warnings on cell phone advertisements. These warnings suggest that the radio frequency emissions from those cell phones are dangerous, despite the fact that the FCC has failed to find a basis for supporting such claims. ANA has also filed an amicus brief in this case.

We will continue to protect the rights of all marketers from efforts by governments at any level to tax, ban, or unreasonably restrict advertising. All advertisers and marketers need to actively oppose these types of threats and be exceptionally vigilant in stopping dangerous state and local legislation before it spreads.

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