April 24, 2007

Legislative Activity

April 24, 2007

To: AAF Members

From: Clark Rector Jr., Senior Vice President – Government Affairs

Re: Urgent Alert – Action Needed Now



The full U.S. Senate may vote as early as Monday, April 30, to authorize an advertising ban of up to two years for new prescription medicines and to allow the Food and Drug Administration to preapprove advertising before it airs. This is the most serious threat to advertising and commercial speech in many years.

Senator Pat Roberts, R-Kan., a former newspaper publisher and editor, will offer an amendment to strike these advertising provisions and allow the FDA, for the first time, to fine pharmaceutical advertisers for false or misleading claims.

It is very important that every member of the Senate hear from as many members of the advertising industry as possible in opposition to the advertising ban. Please call or e-mail both of your senators and ask them to support Senator Roberts' amendment. Pass this alert on to every member of your advertising federation and/or company and ask them to call as well.

The advertising ban is part of a drug safety bill co-sponsored by Senators Edward Kennedy, D-Mass., and Mike Enzi, R-Wyo. The Roberts amendment failed in committee by only one vote, 11 to 10. You can see that every vote is vitally important—therefore every call and e-mail is important.

If passed, these advertising provisions would set a horrible precedent for other products. What's next? Food not deemed "healthy enough," or cars with too low miles per gallon?

Talking points and a draft e-mail are included with this alert. Please take a few moments to contact your senators now and forward this alert to your colleagues.

Thank you for your prompt attention on this important matter. Please do not hesitate to call me at (800) 999-2231 if you have any comments or questions.

Talking Points to Oppose Advertising Restrictions

  • I am calling to urge you to support an alternative to restrictions on advertising in the Food and Drug Administration Revitalization Act (S.1082) introduced by Senators Ted Kennedy, D-Mass., and Mike Enzi, R-Wyo.
  • This bill may be voted on in the Senate as early as Monday, April 30, 2007.
  • I urge you to vote against this bill because it contains authority for the government to impose a two-year ban on advertising of prescription medications.
  • I urge you to support an amendment by Senator Pat Roberts, R-Kan., that would repeal the ban on advertising.
  • I believe the provisions restricting advertising in the Kennedy bill would violate the First Amendment protection for commercial speech. The Supreme Court has established a four-part test to determine if restrictions on ads are lawful—we believe these bills would not pass that test.
  • The Supreme Court has said in a case involving FDA regulations on advertising, "If the First Amendment means anything, it means that regulating speech must be a last—not first—resort."
  • There is no evidence that limits on speech will promote drug safety; rather, barring information from advertising will cause more harm to consumers who are not prompted by an ad to see a doctor about an illness. Surveys show that these ads prompted more than 39 million to ask their doctor about a particular health condition.
  • The most important safeguard is our physicians—no one can get a drug without a doctor examining us and writing a prescription.
E-mail to Senators

Dear Senator _____________:

I am writing to urge you to oppose the advertising ban in the Food and Drug Administration Revitalization Act (S. 1082) that was introduced by Senators Ted Kennedy and Mike Enzi and was passed out of the Health, Education, Labor and Pensions Committee on April 18, 2007. This bill may be voted on in the Senate as early as Monday, April 30, 2007.

The two-year ban on advertising in this bill would violate the First Amendment protection for commercial speech. No evidence has been presented that this ban on speech will promote drug safety; rather, barring information from advertising likely will cause more harm to consumers.

We urge you to support the amendment by Senator Pat Roberts, R-Kan., that would repeal the ban on advertising and substitute a rational system for monitoring advertising and assuring that it is truthful and not misleading.

For 30 years, the U.S. Supreme Court has held that advertising is entitled to protection under the First Amendment. These restrictions would not pass the four-part test the Supreme Court uses to evaluate restrictions on advertising. We ask you to uphold the First Amendment and the right of the public to receive health information through advertising.

It is important to remember that NO prescription medication may be obtained without a doctor's approval. Greater consumer access to information about prescription medications helps consumers begin a conversation with their doctors, and more than 39 million Americans asked a doctor for the first time about a new medical condition because they saw an ad for a prescription medication.

The Kennedy bill proposes to take information away from consumers. We urge you to seek removal of these restrictions on speech or vote against this bill.