A bill advancing through the House of Representatives would put a three year ban on advertisements for new drugs, and an association of associations (along with two networks) wants it defeated on constitutional grounds. The group, banding together as the Advertising Coalition, pleaded its case with Energy and Commerce Committee Chairman John Dingell (D-MI) in a recent letter.
The AC says Supreme Court precedent holds that "restrictions on speech, even if they advance a government interest, must be the last and not the first choice of regulators." It recommends that instead of the outright three-year ban, the FDA be given regulatory tools modeled on those used by the FTC for dealing with false advertising.
At this point, all FDA can do with a false claim finding is withdraw the product completely from the marketplace, a nuclear option which for that very reason is not often used. "A far more effective method would be to determine in an administrative proceeding if the advertising is false and give FDA the power to impose civil monetary penalties for violations." AC points out that the advertising often has benefits, educating consumers about symptoms and prompting check-ups that otherwise might not occur. CBS and NBC were signatories, along with NAB, NCTA and other advertising and publishing organizations.