September 5, 2006

Legislative Activity


September 5, 2006

To: Board Members

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

Re: Urgent Action Request



Senators Mike Enzi, R-Wyo., and Ted Kennedy, D-Mass., recently introduced the Enhancing Drug Safety and Innovation Act (S. 3807). This comprehensive bill contains two provisions that would be very harmful to the advertising industry.

The first provision would allow the commissioner of the Food and Drug Administration (FDA) to require advance approval of every advertisement for a new prescription medicine. The second would permit the FDA to bar any advertising for a new medicine for as long as two years. We believe these proposals are unconstitutional as they would impose a prior restraint and/or two-year ban on commercial speech.

Senator Enzi is chairman of the Health, Education, Labor and Pensions (HELP) Committee and hopes to bring the bill to a committee vote soon now that Congress has returned from summer recess.

It is extremely important that you and other members of your ad club contact your Senator as soon as possible and express strong opposition to these positions. Below is a draft on an e-mail you may want to use. I have also made talking points available here. I would appreciate it if you would BCC me at crector@aaf.org.

Thank you for your assistance. Do not hesitate to contact me by e-mail or at (800) 999-2231 if you have any comments or questions.

Sample E-mail

I am writing to urge you to oppose two provisions in the Enhancing Drug Safety and Innovation Act (S. 3807) that has been introduced by Senators Mike Enzi and Ted Kennedy and soon may be considered by the Health, Education, Labor and Pensions Committee. I believe the two provisions in this bill would impose an unconstitutional prior restraint on commercial speech and are in conflict with decades of Supreme Court decisions.

The first provision would allow the secretary to require advance FDA approval of every advertisement for a new prescription medicine. The bill also would permit the FDA to bar advertising for a new medicine for as long as two years, which could be the equivalent of a two-year ban on commercial speech. While these provisions are described as optional, the FDA can require them as a condition for approving a drug.

I understand the importance of raising the standards for approving new drugs to make them safer. However, it is far worse to deny the public information about new medicines. It would be better to encourage greater access to drug information, particularly since no prescription medicine may be purchased by a reader of an ad unless a doctor recommends and writes the prescription.

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 medicine. According to a Harvard study, 35 percent of new patients who went to a doctor because of an ad were diagnosed as having one of 10 serious illnesses as defined by a federal health care agency-diseases like diabetes, high blood pressure and depression.

I am concerned that this bill places a higher priority on keeping Americans in the dark about drug information rather than encouraging the broadest dissemination of information. I ask that if these two restrictions on speech are not removed that you vote against this bill.