March 15, 2002

Legislative Activity


The following letter was sent to all members of the U.S. House and Senate.

American Advertising Federation
American Association of Advertising Agencies
Association of National Advertisers
Magazine Publishers of America
National Association of Broadcasters
National Newspaper Association
Newspaper Association of America

March 15, 2002

The organizations above are writing to express their concern about proposals described in a March 6, 2002 New York Times article that would appear to link the amount of federal government reimbursements for a Medicare prescription drug allowance to the decision of whether the drug had been advertised. We share the concerns expressed in the article for reducing the rising cost of health care, and particularly the cost of prescription medicines, but we fear some of the proposed remedies relating to advertising ultimately could harm consumers and conflict with efforts to improve public health.

Our primary concern is focused on issues raised by proposals to direct the federal government to reimburse a patient or a manufacturer less for a particular drug simply because it has been advertised. We believe such a policy would discriminate against the advertising because of its content and raise serious First Amendment questions because it could be interpreted as trying to limit or penalize the exercise of commercial speech. Moreover, there must be ways to address these issues without restricting protected speech.

The United States Supreme Court for 25 years has rendered a series of decisions that have continuously raised the standard for protecting advertising and other forms of commercial speech under the First Amendment. These cases have established a rigorous series of tests in which the perceived public interest must be balanced against a narrowly constructed remedy. Proposals that have failed these tests in the past have attempted to punish speech solely because of its content.

But it is not simply a constitutional principle that we ask you to protect. We believe the broad advertising of prescription drugs has launched a public health revolution in America and we join with health organizations and patient groups around the country to encourage the distribution of more health care information through advertising.

In 1997, the Food and Drug Administration issued a draft guidance that opened the way for expanded broadcast advertising, while ensuring that audiences exposed to television advertisements would have convenient access to approved labeling for the products through print media, the Internet and other sources. FDA surveyed public opinion two years after manufacturers were permitted to widely advertise their products.

In perhaps the most important finding of that survey, FDA learned that nearly 23 million Americans had made an appointment to see a doctor and to talk about a condition they had never before discussed because they had seen a prescription drug advertisement.
It also was encouraging to learn that Americans who like advertising of prescription medicines outnumber those who do not by two to one. Moreover, the findings in the FDA survey and other research demonstrate that DTC advertising has proven to be an effective way to raise health awareness in individuals and to lead to earlier diagnosis of diseases.

DTC advertising certainly does not gloss over the risks associated with prescription medicines. Of the respondents to one FDA survey, 82 percent said they remembered information about the "risks or side effects." These ads even help remind people to properly use their current prescriptions - 33 percent of the respondents to a 2000 Prevention Magazine survey said the ads reminded them to have their prescriptions refilled, and 22 percent were more likely to take their medicine regularly. This is an important result because more than one-third of all patients fail to follow prescriptions to their own detriment.

It is important to reach out to people with information about their health because too many Americans are unaware they may have a disease that threatens their lives or their quality of living. It also is clear that early detection not only can save lives and prevent long illnesses, it can save hundreds of billions of dollars in health care costs and lost productivity. In an effort to avoid more serious illnesses and to reduce cost through early detection, the Centers for Disease Control has made communication and public education a top priority. Consider these examples:

  • Forty-three million Americans suffer from arthritis at a cost of $65 billion a year. It is the leading cause of disability in the United States, but according to the CDC, "although cost-effective interventions are available to reduce the burden of arthritis, they are underused."
  • The CDC estimates that one-third of the nation's 16 million Americans who suffer from diabetes have not yet been diagnosed with this disease. Diabetes accounts for more than $98 billion annually in direct and indirect medical costs and lost productivity.
  • One in five Americans — 56 million — have high blood pressure, and yet 18 million of them are unaware they have it. Another eight million know they have this deadly disease but are not receiving medication for it.
  • Only 14 percent of women 50 or older think it is very likely they will develop osteoporosis in their lifetime - despite the fact that one in every two will experience an osteoporosis-related bone fracture.

Giving consumers information about health conditions is only a starting point - often it does not result in receiving a prescription, but in other health supporting recommendations. Because of the central role played by their physicians, people who call their doctors after seeing an ad often receive important information about how to eat better, exercise, and take other steps to stay healthy. According to the Prevention survey, 53 percent of the respondents who called a physician about an ad to talk to their doctors about obesity, diabetes, depression, or cholesterol levels said their doctor also had mentioned a non-drug therapy.

We believe consumers always are better served with more information, rather than less, particularly when access to information may be a matter of life and death. We should support the right of consumers to make more informed choices and empower them to participate more in their own health care. The government should not make consumers pay more for health care because they have access to more information about diseases and their treatment.

We welcome an opportunity to discuss how advertising can play a positive role in providing important information to America's healthcare consumers.

Respectfully,

American Advertising Federation
American Association of Advertising Agencies
Association of National Advertisers
Magazine Publishers of America
National Association of Broadcasters
National Newspaper Association
Newspaper Association of America

Enclosure

Contact Information: Jim Davidson 202-638-1101