Limiting Available Health Info is Bad for America

December 5, 2017

Last week, the National Academy of Sciences issued a new report, “Making Medicines Affordable: A National Imperative,” which, among other proposals, recommends that the tax deduction for prescription drug advertising be removed. The report also suggests that drug companies “adopt industry codes of conduct that reduce or eliminate direct-to-consumer advertising of prescription drugs.” This report is just the latest in a string of recent attacks against this sector-specific advertising. In 2015, the American Medical Association adopted a policy aimed at banning direct-to-consumer (DTC) advertisements and began advocating for a federal ban on television ads and other advertising of prescription drugs. Senator Franken (D-MN) put in legislation at the beginning of this year to ban the tax deduction for prescription drug ads, and last month Senator Claire McCaskill (D-MO) filed an amendment to the Tax Cuts and Jobs Act that also would have eliminated the advertising deduction for pharmaceutical companies. Fortunately, this amendment did not gain traction as part of the tax bill’s passage in the Senate.

Nevertheless, all advertisers should see these moves as significant attacks on First Amendment commercial speech rights that protect our industry’s ability to reach consumers in honest, non-deceptive ways.

The radical action suggested by this new National Academy of Sciences report is extremely troubling. It implies that highly regulated truthful advertisements are bad for Americans. Singling out the pharmaceutical industry for this sort of disadvantaged tax treatment is highly likely to violate the First Amendment and be unconstitutional.

The FDA comprehensively regulates direct-to-consumer (DTC) advertising. It has developed detailed requirements that this advertising include a balanced presentation of risk and benefit information. In addition, unlike most other products, consumers can only obtain these products if a learned intermediary – a doctor – prescribes these medications. If these products’ advertising can be banned or severely restricted, this will create very broad negative precedents for the extension of similar types of limitations on other controversial categories, however truthful their advertising.

ANA is hopeful that the National Academy’s recommendation will receive very careful scrutiny. The Senate Health, Education, Labor & Pensions (HELP) Committee will be holding a hearing next week to examine this issue further and delve into many of the other potential causes of increased drug prices. ANA will be filing detailed comments in advance of this hearing explaining why any restriction on advertisers’ ability to communicate to consumers through advertising about the potentially lifesaving or life-enhancing qualities of their products will be detrimental for all parties. We will provide an update to this blog after the hearing.

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