Hillary Clinton’s Proposals on Prescription Drug Advertising are Wrong and Misguided

September 22, 2015

Presidential candidate Hillary Clinton today proposed a comprehensive approach to address the cost of prescription drug products. While we take no position on the areas of the plan that do not impact advertising, her calls for new restrictions on direct-to-consumer (DTC) prescription drug advertising and limits on the tax deductibility of this advertising are misguided and unconstitutional.

These are not new ideas, just bad ones.

By singling out DTC prescription drug advertising for tax treatment different from the advertising for any other product, this approach raises very serious First Amendment issues and would be thrown out by the courts. The Supreme Court has been clear that manipulating the tax code to penalize disfavored speech runs afoul of the First Amendment. Contrary to the claims of Secretary Clinton, prescription drug advertising is one of the most highly-regulated advertising categories.  

These proposals would penalize prescription drug products, however truthful, non-deceptive, and potentially life saving they might be. The FDA has very powerful tools to ensure that these ads are truthful and non-deceptive. Congress rejected many of these proposals to restrict DTC advertising in 2007 when they passed major legislation reforming the FDA. The Congress also rejected these types of prescription drug ad tax proposals when they were put forward in 2009.      

There is substantial data which demonstrates that DTC advertising plays a critical role in our nation’s health care system. It raises health awareness and helps consumers prevent serious health problems through earlier disease diagnosis.

One of the greatest health dangers in the United States is the under treatment of life threatening or debilitating diseases. Millions of Americans are unaware that they have high blood pressure, high cholesterol, clinical depression or diabetes. All of these diseases can be successfully treated with prescription drugs. Early treatment can be a matter of life or death, or the avoidance of serious disability. Clearly, these drugs help patients avoid strokes, heart attacks, kidney disease and combat mental illness and can thereby save enormous costs in hospitalization or constant treatment by physicians.

We believe that consumers should have more information about their health, not less. DTC advertising is providing valuable information to millions of Americans about their health care. Restricting these ads or denying the tax deduction for DTC marketing costs would be unwise and counterproductive.

The tax laws should provide the same tax treatment for the advertising costs of every legal product and service sold in America. Singling out a specific industry for onerous differential tax treatment would punish the speech of companies in that industry and politicize the tax code.

Secretary Clinton’s proposals would set a very dangerous precedent. If the tax code can be used to penalize those companies that advertise and sell products that some people don’t like, it can be used as a weapon against any legal product or service. If a restriction on the deduction for DTC advertising costs became law, the tax code could become a vehicle for punishing any advertising which a shifting majority of lawmakers decides is not at that time “politically correct.”

We urge Secretary Clinton to rethink and reject this discredited approach.

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