Waxman Defeats Dingell for House Energy & Commerce Chairmanship

November 20, 2008

What Does This Mean for the Advertising Industry?

This morning, the House Democratic caucus voted 137-122 to install Congressman Henry Waxman (D-CA) as the Chair of the House Energy and Commerce Committee.  He replaces Congressman John Dingell (D-MI), who is the longest serving member of the House of Representatives and has been the top Democrat on the panel, either as Chair or ranking member, since 1981.  While most press accounts will focus on the change this means for energy and environmental policy, this is also an important change for the advertising industry. 

Congressman Waxman stated in his first remarks after the vote that he will be an "activist" chairman of the committee. Congressman Waxman is widely respected for his legislative acumen and is known as a close ally of House Speaker Nancy Pelosi, his fellow Californian.  It is also important to note that Phil Schiliro, Congressman Waxman's former chief of staff, has been named Assistant to the President for Legislative Affairs in the incoming Obama administration.  It is highly likely, taking into account each of these factors, that Congressman Waxman will be able to assiduously and vigorously pursue his agenda.  

Congressman Waxman throughout his career has focused on the advertising issues.  Some of the areas where he has pushed for regulation include:

• Tobacco advertising:  Congressman Waxman has been a longtime critic of the tobacco industry, dating back to his early days in the Congress.  In the 110^th Congress, he was the principal sponsor of H.R. 1108, which would transfer authority over tobacco products and advertising to the Food and Drug Administration and require the FDA to impose rules drastically limiting ad placement and content.  ANA has long argued that these rules pose many constitutional issues, as they would result in a de facto ban on protected commercial speech.   
• Direct-to-consumer prescription drug advertising:  Congressman Waxman, along with Congressman Ed Markey (D-MA), introduced drug safety legislation in 2007 that included a potential three-year moratorium on ads for new prescription drugs, preclearance for all other DTC ads, and required that ads contain a symbol indicating the drug was new to the market.  While the eventual drug safety bill did not include these provisions, we expect these types of drug advertising issues will resurface in the next Congress.    
• Over-the-counter drug advertising:  In the 110^th Congress, Congressman Waxman joined with Senator Ted Kennedy (D-MA) to sponsor legislation (H.R. 4083) that would transfer jurisdiction concerning over-the-counter drug advertising to the FDA.
• Product placement:  Congressman Waxman has joined Congressman Markey in urging the FCC to take additional action to limit embedded advertising, or product placement, on television, claiming that the practice is "blurring" the line between advertising and program content.  
• Green marketing:  It is expected that Congressman Waxman will be much more focused on environmental issues, and one issue that may arise will be green marketing and green product claims.

It is highly likely that Congressman Waxman will include each of these items on the committee's agenda in the upcoming Congress.  With a new Democratic Administration taking office and a more regulatory-minded Congress to convene in January, we expect that there will be widespread support on both ends of Pennsylvania Avenue for many of these initiatives.  We anticipate that 2009 will be extremely challenging for the advertising industry. 

If you have any questions, please contact Dan Jaffe in ANA's Washington office at 202-296-2359 or at djaffe@ana.net.