An interesting article is written by Lia Mulligan titled “You Can’t Say That on Television: Constitutional Analysis of a Direct-to-Consumer Pharmaceutical Advertising Ban,” which appeared in the 2011 issue of the American Journal of Law and Medicine (vol. 37, pages 444-467).
In the article it is mentioned that the average american will watch around 16 hours of pharmaceutical advertisements on TV a year. As mentioned I believe before on this blog the U.S. and New Zealand are the only 2 countries in the world that even allow direct to consumer pharmaceutical advertising (DTCA).
I personally do not like this type of advertising and neither do some of my friends. We often make fun of the advertisements when they come on TV as they sometimes can be quite silly.
The article mentions in 1969 when the FDA first issued regulations for DTCA there were four main principles that had to be followed
- truthful information that does not mislead the public in any way
- a balance of both risks and benefits of the advertised product
- relevant, material information about the product that relates to its intended uses
- every risk associated with the advertised product’s use
As you can imagine every risk associated can be a lot of risks. Hence in 1997 the FDA began drafting guidance to replace every risk with only major risks and had to list other sources where viewers could find all the risk information.
There is then some discussion in the article about how when consumer see advertising about a particular drug they may then yes actually ask there doctor for this drug and their physician may then feel pressured into meeting this request.
The author then mentions that some consumers can be misled by pharmaceutical advertisements to think that certain disorders are much more prevalent in society than they really are in reality. Hence many feel DTCA is deceptive. The author then mentions some studies which show that DTCA motivates consumes to seek out unnecessary medical care by seeing doctors and getting prescription drugs which they really don’t need.
The author goes into a lot of legal issues and cases and mentions the Citzens United ruling.
I found the end and the final comment of this article to be the most intriguing.
“When a person fills a prescription and pays his co-pay, the remainder of the cost is charged to his insurance company. That cost, in one instance, can be absorbed by the individual’s premium. Over time, with more and more prescription purchases charging more and more money to insurance companies, that cost is no longer offset by one individual’s insurance premium—it is spread amongst tbe group of people who are paying into the insurance policy. In effect, an individual making a “purchase” by filling a prescription is making a consumer choice for the entire group of which he is a part….”
“When that ‘insurance company’ is the federal or state government, by way of Medicare or Medicaid, each instance of unnecessary care causes taxpaying citizens to suffer economically, and the nation’s economy declines as a whole….there is no reason why everyday consumers should be bombarded with advertisements about prescription drugs whose prices must be paid by the entirety of society. This is the inherent difference between prescription drug advertising and every other type of product advertising in this country, and it ought to be recognized in our legislative and judicial systems.”