The American Medical Association’s recent call for an outright ban on direct-to-consumer drug advertising has become a hot topic of discussion. While the AMA’s call for a direct-to-consumer ban may be in sync with a growing popular sentiment, it’s both puzzling and troubling on several levels.
There is, of course, a First Amendment issue. If an attempt to ban healthcare communications to consumers ever reaches the federal court system, the result seems clear. The controversial Citizens United Supreme Court decision underlines the court’s belief that corporate speech enjoys the same First Amendment protections as individual speech. Some may think that the ban on most tobacco advertising suggests that a DTC ban isn’t that far-fetched. The difference is that the tobacco ban was not legislated, but was a result of the Master Settlement Agreement reached in 1998 by the tobacco industry and a number of U.S. states.
There are other factors at work that have little to do with the law. For example, one can imagine that it could be a little uncomfortable for a mother sitting on the couch with her young children as they watch a sultry woman in a football jersey chat about her man’s sexual dysfunction. But that’s very different from the AMA’s objections to DTC ads; the AMA’s objections are presumably based on public health concerns. And the First Amendment generally avoids limiting speech based on whether or not people are offended by the content.
That doesn’t mean Congress won’t try to eliminate DTC advertising. Politicians on the left and the right are finding that the occasional rant against pharmaceutical companies is great fun—and, increasingly, highly productive from a political point of view. As a number of politicians have recently demonstrated, populist agitation for unconstitutional actions can trigger calls for what amount to “showpiece” legislative initiatives that have little or no chance of becoming law, much less being brought to the floor for a vote. But they do make headlines. More seemingly benign tactics have been proposed, such as taxing DTC advertising.
I asked John Kamp, Executive Director of the Coalition for Healthcare Communications, for his thoughts on the move to ban DTC advertising. The CHC is a nonprofit organization based in Washington that represents the interests of the pharmaceutical advertising industry.
“DTC currently is the most aggressively regulated advertising available,” John said. “This is clear from the careful and lengthy side effect disclosures in every broadcast ad. Eliminating these ads would keep consumers in the dark about both the benefits and side effects of medicine.”
He pointed out the additional benefits of an informed patient population; “Numerous studies have demonstrated that patients who seek out information and have robust conversations with their doctors are more likely to adhere to directions and achieve better health results.” John also pointed out that DTC helps patients and caregivers recognize symptoms as well as possible solutions for health issues.
Dr. Peter Rheinstein, an AMA delegate and former director of what is now the FDA’s OPDP (Office for Prescription Drug Promotion), sheds some light on why some physicians hate DTC advertising: “Physicians are frustrated from the standpoint of the time demand,” he said in a recent interview with FiercePharmaMarketing. “When a patient comes in asking for a drug
The high price of drugs is another populist issue, but money spent on drugs amounts to 9% of the $3 trillion we spend on healthcare each year. While that percentage is not a trivial sum, it’s hardly the main culprit for runaway healthcare costs.
Stuart Elliott, former advertising columnist for the New York Times and now a Media Village contributor, recently echoed the complaint that DTC advertising raises the cost of drugs. He cites recent comments by Dr. Patrice Harris, board chair-elect of the AMA, who said that marketing costs play a role “in fueling escalating drug prices.” But the evidence—and logic—doesn’t support that contention. Total DTC advertising amounted to just over 1% of total drug revenue last year, hardly a factor in driving up drug costs. Compare that to McDonalds, which spent 16% of U.S. sales on advertising, then consider the benefits of fast food versus drugs.
A November 27th op-ed article written by the New York Times’ editorial board, titled “Turn the Volume Down on Drug Ads,” reported that DTC advertising “inflates demand for new and more expensive drugs, even when these drugs may not be appropriate.” The article then harkened back to the early 1960s: “Decades ago, most drug ads appeared in medical journals, on the assumption that only medical professionals could weigh the risks, benefits, and appropriate uses.” Do they think that was a good thing—the good old days when patients were locked out of the healthcare decision process?
“A survey by the Kaiser Family Foundation…found that a whopping 89% of the public favors requiring the Food and Drug Administration to review prescription-drug ads for accuracy before they are broadcast,” the article continued, suggesting that that wasn’t already the case and neglecting to mention that the FDA exhaustively reviews DTC ads before they’re allowed to air. America’s newspaper of record seems to lack faith in the public’s ability to think and make intelligent choices regarding their health.
There certainly are documented instances when an informed patient or caregiver has prevented a doctor from prescribing potentially harmful drugs. The New York Times—the same news organization that advocates limiting consumer communications through DTC—reported in a page-one article that a California physician prescribed the powerful antipsychotic Risperdal to an 18-month-old baby. The baby suffered from seizures and had been experiencing thrashing temper tantrums. Risperdal is a “black box” drug typically used to treat schizophrenia and bipolar disorder in adults, and it is rarely used in children as young as five years. After taking Risperdal, the baby “seemed to interact with people and objects that were not there,” the Times reported. The child’s alarmed mother researched the drug and found that it was not approved for, and had never even been studied in, children anywhere near as young as her child. Prescribing a powerful antipsychotic to children age two or younger is not an isolated occurrence, and is “rising rapidly,” according to the Times. Surely these are instances where a consumer’s ability to quickly find relevant information is invaluable.
The problem for responsible healthcare marketers is that any call for regulatory restrictions on consumer advertising sends a chill through the pharmaceutical industry. When under pressure, pharma tends to invoke the old business adage that “when in doubt, do nothing.” It’s not difficult to envision a voluntary two-year ban on DTC advertising following a new drug’s launch—a restriction not found in any other product category. David Vladeck, former director of the Bureau of Consumer Protection at the FTC, has called on Congress to pass legislation that would require such a hiatus.
The call for increased DTC regulation short changes the consumer by limiting consumers’ ability to gather information and make good choices. According to Google Health, there are over 175 million health-related searches per day, demonstrating an insatiable appetite for information. Keeping the consumer in the dark just isn’t going to happen—that horse has left the barn. One way or the other, people will find whatever information they seek. Social media—an unregulated, often wildly inaccurate source of health information—will fill the void. We can’t turn back the clock, and the best defense against misinformation is the responsible dissemination of good, validated information. Hopefully, cooler heads will prevail and we can continue to give the healthcare consumer what he or she deserves: balanced, validated, easily accessible, useful drug and disease information.