House Health Subcommittee Strips Drug Safety Bill of Burdensome DTC Restrictions; Full Committee Considers Bill Tomorrow

Yesterday, the Health Subcommittee of the House Energy and Commerce Committee passed an amendment sponsored by Reps. Ed Towns (D-NY) and Steve Buyer (R-IN) removing extremely onerous restrictions on advertising from the drug safety bill. The bill would have allowed the FDA to ban advertising of new prescription drugs for up to three years and to preclear all prescription drug advertising. After an extremely contentious debate, the amendment passed on a bipartisan 23-9 vote. All Republicans and 9 Democrats (Towns, Bart Gordon (TN), Tammy Baldwin (WI), Eliot Engel (NY), Mike Ross (AR), Darlene Hooley (OR), Anthony Weiner (NY), Jim Matheson (UT), and Energy and Commerce Committee Chairman John Dingell (MI)) voted for the amendment. Significantly, the amendment passed despite the support for the original provisions from Subcommittee Chairman Frank Pallone (D-NJ) and the second raking Democrat on the subcommittee, Rep. Henry Waxman (D-CA).

This victory was achieved through a major effort of the entire industry: advertiser, agency, and media. However, the industry is not out of the woods yet. The full committee will consider the bill tomorrow, and Rep. Waxman is on record questioning the adequacy of civil penalties. Rep. Pallone has also been quoted saying he would like to revisit the issue of ad review.

Importantly, if we can preserve this victory in the full committee, it may lead to a more conducive environment for discussion of broader advertising issues. A number of members supporting the amendment noted their aversion to DTC advertising but voted for it because of the Supreme Court's vigorous protection of commercial speech in its First Amendment jurisprudence. This argument can be applied to other areas of advertising as well. ANA was extremely active in lobbying the committee and pointing out the First Amendment issues involved.

We plan on monitoring the full committee markup tomorrow and will let you know of any further developments. If you have any questions, please contact Dan Jaffe in ANA's Washington office at 202-296-2359 or at