April 10, 2007

Legislative Activity

April 10, 2007

To: AAF Members

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

Re: Urgent Action Needed on Senate Bill Restricting Advertising

Last month I asked you to contact your senator to oppose drug safety legislation introduced by Senators Edward Kennedy, D-Mass., and Mike Enzi, R-Wyo., that includes three provisions that would restrict advertising for prescription drugs. The Enhancing Drug Safety and Innovation Act (S. 1082) would give the Food and Drug Administration the authority to ban ads for new prescription medications for up to two years, require government preclearance of advertising content and mandate certain warning language to be included in advertising.

Your senator is a member of the Senate Committee on Health, Education, Labor and Pensions or HELP Committee. Senators Kennedy and Enzi, the chairman and senior Republican member of the committee, have indicated their desire to bring the bill to a committee vote in the near future, possibly as soon as next week.

It is very important that members of the HELP Committee continue to hear from advertising industry constituents opposed to the advertising provisions of the bill. Please call, e-mail or fax your senator and urge opposition to S. 1082. Forward this e-mail to co-workers or other members of your advertising federation and urge them to do so as well.

A list of senators on the committee and their health staff, talking points on the issue and a sample e-mail are included in this e-mail.

Please send a copy of your communication to us at AAF headquarters. Do not hesitate to contact me if you have any comments or questions. Thank you for your continued help with this urgent matter.

Talking Points for the Kennedy Enzi Drug Safety Bill (S. 1082):

  • Prescription drug advertising informs consumers about health conditions and is directly responsible for prompting patients to see their doctors. Surveys by FDA (2002) and Preventionmagazine (2004) indicate that advertising for prescription medication prompted 30 million Americans to talk to a doctor about a new or previously untreated health condition.
  • Advertising raises health awareness and can lead to earlier diagnosis and treatment. Advertising can reach an estimated six million Americans who suffer from diabetes but have not been diagnosed. As many as 65 million Americans have high blood pressure, and yet it appears that 18 million are unaware they have this silent killer.
  • The Enhancing Drug Safety and Innovation Act of 2007 (S.484) contains three restrictions that would suppress the communication of health information to consumers.
    — A two-year moratorium on advertisements for prescription medication,
    — Preclearance by the federal government of advertisements, and
    — Authority for the government to mandate that certain language must be part of every advertisement.
  • These provisions could prevent millions of Americans from receiving information that would motivate them to talk to their doctor about an important health condition or get an examination that could reveal an undiscovered condition.
  • The U.S. Supreme Court recognized the importance of advertising to consumers in Thompson v. Western States Medical Center, 535 U.S. 357 (2002). Justice O'Connor, writing for the court, stated "if the First Amendment means anything, it means that regulating speech must be a last-not first-resort."
  • DTC advertising encourages greater patient compliance. As many as one-third of all patients fail to take all of their prescribed medicine. DTC ads help remind people to properly use their medicines. Thirty-three percent of respondents to a Preventionmagazine study said the ads reminded them to refill their prescriptions, and 22 percent reported the ads made them more likely to take their medicine regularly.
  • The physician must write the prescription. Patients cannot go to a pharmacy and request a particular drug-a doctor must write the prescription after examining the patient and recommend the best treatment. FDA nevertheless requires that DTC advertising be accurate and balanced, and FDA has aggressively increased its oversight of these ads.
  • Advertising can erase the stigma that prevents some people from seeking medical treatment. A recent Keystone Research Center study found that 62 percent of Americans believe that advertising for prescription medications can make it less embarrassing to raise sensitive issues with your doctor.

Sample E-Mail:

Dear Senator :

I am writing to urge you to oppose three provisions in the Enhancing Drug Safety and Innovation Act (S.484) that was introduced by Senators Ted Kennedy and Mike Enzi and will soon be voted on by the Health, Education, Labor and Pensions Committee. While these provisions are described as optional, the government could require them as a condition to approve a new drug.

I firmly believe the three provisions restricting advertising in this bill would violate the First Amendment protection for commercial speech.

  • The first provision would allow the government to approve in advance every advertisement for a new prescription medication.
  • The second would permit the government to ban advertising for a new medication for as long as two years-in effect, a two-year ban on commercial speech.
  • The third would mandate that advertisers include additional government dictated warnings in each advertisement. Today all ads, whether print or broadcast, must state not only the benefits but also the risks of any prescription medication, and the Food and Drug Administration is quick to issue warning letters to advertisers when they believe an ad is misleading. They do not need additional authority.
Advertising for prescription medications has helped millions of Americans obtain needed medical treatment. More than 30 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-Enzi bill proposes to keep information from consumers, or to let the government dictate the content of consumer information. Greater consumer access to information about prescription medications helps consumers begin a conversation with their doctors, and no prescription medication may be obtained without a doctor's approval. I urge you to seek removal of these three restrictions on speech or vote against this bill.


Health Education Labor and Pensions Committee
Member Staff List

Senator Lisa Murkowski
Legislative Assistant: Maggie Elehwany
Phone: (202) 224-6665
Fax: (202) 224-5301

Senator Wayne Allard
Legislative Assistant: Jennifer Claypool
Phone: (202) 224-5941
Fax: (202) 224-6471

Senator Chris Dodd
Legislative Assistant: Tamar Magarik
Phone: (202) 224-2823
Fax: (202) 224-1083

Senator Johnny Isakson
Legislative Assistant: Tyler Thompson
Phone: (202) 224-3643
Fax: (202) 228-0724

Senator Barack Obama
Legislative Assistant: Ed Romas
Phone: (202) 224-2854
Fax: (202) 228-5417

Senator Tom Harkin
Legislative Assistant: Mike Woody
Phone: (202) 224-3254
Fax: (202) 224-9369

Senator Pat Roberts
Legislative Assistant: Jennifer Swenson
Phone: (202) 224-4774
Fax: (202) 224-3514

Senator Barbara Mikulski
Legislative Assistant: Ellen-Marie Whelan
Phone: (202) 224-4654
Fax: (202) 224-8858

Senator Ted Kennedy, Chairman
Legislative Assistant: David Dorsey
Phone: (202) 224-4543
Fax: (202) 224-2417

New Hampshire
Senator Judd Gregg
Legislative Assistant: Liz Wroe
Phone: (202) 224-3324
Fax: 224-4952

New Mexico
Senator Jeff Bingaman
Legislative Assistant: Dr. Nancy Hardt
Phone: (202) 224-5521
Fax: (202) 224-2852

New York
Senator Hillary Clinton
Legislative Assistant: Andrea Palm
Phone: (202) 224-4451
Fax: (202) 228-0282

North Carolina
Senator Richard Burr
Legislative Assistant: Jenny Ware
Phone: (202) 224-3154
Fax: (202) 228-2981

Senator Sherrod Brown
Deputy Chief of Staff: Eleanor Dehoney
Phone: (202) 224-2315
Fax: (202) 228-6321

Senator Tom Coburn
Legislative Assistant: Stephanie Carlton
Phone: (202) 224-5754
Fax: (202) 224-6008

Rhode Island
Senator Jack Reed
Legislative Assistant: Lisa German-Foster
Phone: (202) 224-4642
Fax: (202) 224-4680

Senator Lamar Alexander
Chief of Staff: Tom Ingram
Phone: (202) 224-4944
Fax: (202) 228-3398

Senator Orrin Hatch
Legislative Assistant: Guy Clifton
Phone: (202) 224-5251
Fax: (202) 224-6331

Senator Bernie Sanders
Chief of Staff: Jeff Weaver
Phone: (202) 224-5141
Fax: (202) 228-0776

Senator Patty Murray
Legislative Assistant: Paula Burg
Phone: (202) 224-2621
Fax: (202) 224-0238

Senator Michael Enzi, Ranking Member
Legislative Assistant: Amy Muhlberg
Phone: (202) 224-3424
Fax: (202) 228-0359