Advertising and Marketing

Cialis Doesn't Live Here Anymore

Washington makes another attempt to curb ED ads 5/09/2009 01:00:00 PM Eastern

Efforts are being pushed in Washington to either ban, or give viewers the option to remove, what have become among the most well-known ads in broadcast programming: erectile-dysfunction commercials.

The efforts may be a long shot. But they could be abetted on several fronts. These include the FCC's recent indecency enforcement victories in the Supreme Court; a congressionally mandated study, due to Congress this summer, on ways for parents, and perhaps the government, to better control the access children have to media content of all stripes; and legislators with a history of backing content controls who seek to regulate drug ads.

On the House side, Commerce Committee Chairman Henry Waxman (D-Calif.) has long wanted to boost regulation of direct-to-consumer (DTC) drug advertising. In the Senate, Jay Rockefeller (D-W.Va.) remains concerned about the impact of media content on kids.

Then there is this comment from a concerned Washington dad: “I wasn't too happy with ads for erectile-dysfunction drugs popping up every 15 minutes whenever I watched a football game with my daughters in the room.” The dad in question: Barack Obama, who wrote this in his best-seller, The Audacity of Hope.

New FTC Chief gets clued in

If that weren't enough to suggest there's reason to worry about ads featuring men tossing the pigskin through tires, new Federal Trade Commission Chairman Jon Leibowitz, who is expected to flex his regulatory powers, has been briefed on the issue, according to one kids TV advocate who wants the ads out of shows with any measurable audience of children.

Advertisers are feeling a clear threat of restriction. And this comes at a time when the economy is making it hard for broadcasters to find advertisers, period.

Last week, Rep. Jim Moran (D-Va.) re-introduced a bill that would effectively ban broadcasters from airing any ads for erectile dysfunction, or “male enhancement,” between 6 a.m. and 10 p.m., essentially mandating that such ads fall under the FCC's enforcement of indecency.

Dan Jaffe, executive VP of government relations for the Association of National Advertisers, is plenty worried, calling Moran's attempt to tie DTC advertising to the indecency issue a “one-two punch against this type of advertising.”

Jaffe says the Supreme Court has made it clear that ads for legal products are protected. But the Supreme Court last week also gave the FCC new hope that its crackdown on indecency was defensible, at least in the short term, throwing out a lower-court decision that the crackdown was arbitrary and capricious.

Moran has pushed this bill before. Is there any reason to think he will be more successful now?

Given the absence of a crystal ball, Jaffe points out that “there are people such as Senator Rockefeller who have been very concerned about indecency, who are now chairmen of committees.”

Asked about his boss' reaction to the issue of indecent content following the Supreme Court decision, a Rockefeller aide told B&C: “Chairman Rockefeller's long-standing views have not changed, but he is looking at the larger issue of children's programming and has not yet set his full legislative agenda.”

'Atmosphere of concern'

“We know that Chairman Waxman on the House side is very concerned about direct-to-consumer advertising in general,” Jaffe adds. “So, there is just an atmosphere right now of concern that may give a little bit more push to this legislation.”

Jaffe also points to calls for rating or blocking advertising, some of which came in comments on an FCC report due to Congress in August about content control technologies. Some who commented cited ED ads as justifying rating commercials to allow parents to block them if they choose.

Common Sense Media, an advocacy group that claims FCC chairman nominee Julius Genachowski as a founding member, has been pushing for self-regulation of the ads. “The industry should voluntarily agree not to show these ads during any kind of programming where there is a demonstrable kids audience, particularly during ball games,” he says.

Jaffe says the industry has taken steps to curb the ads, but James Steyer, CEO of Common Sense, suggests that more must be done.

Then there's the reality that sports is where you find a concentration of the male audience advertisers are trying to reach with ED ads. “Too bad; there are millions of kids in the audience,” Steyer points out. “We recognize that there are adult males in the audience but there are kids, too, and that ought to make it off-limits.

“I think the message on the ad front in general is that the folks who create the ads and distribute them ought to be much more thoughtful about who is in the audience,” Steyer adds. “And I think that is what Rep. Moran's bill is aiming at. Whether or not it will fall under indecency is a different story.”

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