Another Misguided Attack on Prescription Drug Advertising

February 18, 2016

Representative Rosa DeLauro (D-CT) has joined the chorus of misguided attacks on direct-to-consumer (DTC) pharmaceutical advertising. Last week she introduced the “Responsibility in Drug Advertising Act,” (H.R.4565), which would restrict DTC advertising of a new drug in the first three years after the drug’s approval.

Unfortunately, this is not a new idea, just a bad one. It would paternalistically roll the clock back decades to the days when only doctors could be “trusted” to receive information about important health issues.

Congresswoman DeLauro’s bill would undermine the critical role that advertising plays in the democratization of knowledge and information in our society. The “one percent” who have the best access to health care and information from other sources would be able to find out about new drugs that have been approved. Restricting DTC ads for these new drugs would seriously limit the ability of everyone else to learn about these new products. Such an approach is wrong and misguided, particularly if a new drug is potentially life-saving or significantly life enhancing.  

We believe that consumers should have more information about their health, not less. DTC advertising, under the FDA’s strict oversight, is providing extremely valuable information to millions of Americans about their health care. Banning these ads or denying the current tax deduction for them would be unwise and counterproductive.

Prescription drug advertising is one of the most highly-regulated advertising categories.  

The FDA has very powerful tools to ensure that these ads are truthful and non-deceptive, as well as the power to impose civil penalties for any ads which cross the line. Congress rejected similar sweeping proposals to restrict DTC advertising in 2007 when they passed major legislation reforming the FDA.

The DeLauro bill and other proposals to ban or restrict DTC advertising also raise very serious First Amendment concerns. There are decades of court decisions holding that it is “incompatible with the First Amendment” to censor or otherwise burden speech based on fear that people will make bad decisions, or to promote “what the government perceives to be their own good.” In the Western States case in 2003, a case which involved pharmaceutical advertising, the U.S. Supreme Court held that, “If the First Amendment means anything, it means regulating speech must be a last – not a first – resort.” Clearly the proposal from Congresswoman DeLauro fails that test.

There is substantial data which demonstrates that DTC advertising plays a critical role in our nation’s health care system. 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.

Last fall, the American Medical Association (AMA) adopted a policy aimed at banning all DTC advertising and presidential candidate Hillary Clinton called for eliminating the tax deduction for these ads. It is clear we are seeing a major renewed focus on this important speech category. This must be strongly resisted because it would seriously hurt rather than help the public at large.    

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