Media companies are taking aim at a bill that would put a two-year moratorium on ads for new prescription drugs. They are calling it a prescription for prior restraint.
Not only would it put a crimp in their advertising budgets, but the companies involved argue it would also tear at the fabric of the First Amendment protection of non-misleading commercial speech.
The industry-backed Media Institute weighed into the debate Friday. The institute published a paper by Veteran First Amendment attorney Robert Corn-Revere that calls the Enhancing Drug Safety and Innovation Act, a "classic prior restraint." He continued to say that if it weren't, it is too expansive to square with the "narrowly tailored" requirement of any regulation of commercial speech.
The bill is being pushed in the Senate by Ted Kennedy (D-Mass.) and others.
Expanding the Food & Drug Administration's authority to restrict "truthful, direct to consumer drug advertising is clearly inconsistent with First Amendment principles," said Corn-Revere.
Corn-Revere also argues--as have ad industry representatives --that the ban could actually be harmful to consumers. "The available evidence suggests that advertising prompts consumers to ask their physicians important health-related questions," Corn-Revere said.
An ad industry backed amendment that would have replaced the moratorium with FDA prescreening--though not pre-clearing--of drug ads and given them the power to levy civil penalties on false and misleading ads, was defeated on an 11-10 party-line vote. The ad industry had pledged to continue the fight to strike the ban and another provision requiring government-mandated warnings. That fight has been joined in force by the companies that deliver those messages.
The Media Institute is a First Amendment think tank funded by media companies, including NBC, Viacom, Time Warner, Tribune and the Washington Post Co. It's filings on the TV violence issue got prominent play in the FCC's recently released report.