Michael Arnold Glueck and Robert J. Cihak, The Medicine Men
Wednesday, Aug. 31, 2005

Say, kids, when your Mom goes to the store, ask her to get ..."

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Today, those same kids (ah, reality) and the rest of the nation are listening to another refrain, less chirpy perhaps, but far more important.

"Ask your doctor if [Viagra, Levitra, Cialis, Nexium, Nasocort, Paxil, Zoloft, Ambien, Hemlock, Allegra Di-Hydrous-Oxide, whatever] is right for you."

We've been listening to it since 1997, when the Food and Drug Administration first allowed advertising of prescription drugs to the general public. Since then, these commercials have become a $4.5 billion/year business, supplementing the more traditional forms of pharmaceutical marketing to physicians and health care providers, such as free samples and ads in professional journals.

But now the practice has come under increasing attack from the government and a variety of "public interest" groups. And the day may come when you'll no longer be able to listen to some low-pitched, rapid-fire voice-over inform you that "results may vary" and that a drug's dozen or so side effects are "generally mild" and may, on occasion, include both constipation and diarrhea.

This would be unfortunate, and for more reasons than the public's "right to know."

On one matter, there is complete agreement. Pharmaceutical advertising works. A recent Kaiser Family Foundation study, reported in the July 31 Boston Globe, found that "every dollar spent on drug advertising creates an extra $4.20 in drug sales."

But there's a catch. To work, drug advertising must be extensive and intensive – and, as your Medicine Men never tire of asserting, it's the dosage that determines the toxicity. Is this advertising toxic?

Not hardly, at least when it's "fair and balanced" (We Report. Your Doctor Prescribes). Pharmaceutical advertising serves three vital purposes. The first addresses the fact that drugs cost an enormous amount to develop and certify. Big sellers not only recoup the costs, they also make possible development of other drugs.

The second pertains to the medical information explosion generally, and the desire of patients and their families to educate themselves.

The third helps counter an unfortunate trend in managed care and insurance reimbursement: to restrict their formularies for cost-cutting purposes. Sometimes you have to ask your physician about a drug because he or she is not permitted to prescribe or even mention it.

So, what's the problem? Some consumer advocates fret that advertising forces doctors to write too many prescriptions – as though there were some "proper" number. Others worry about false and misleading claims.

Following a floor speech by Senator Bill Frist, a physician, the Pharmaceutical Research and Manufacturers of America, a drug industry lobbying group, issued a set of voluntary advertising guidelines.

The FDA has been making noises about greater regulation in the wake of the pain-killer meltdown: drugs such as Vioxx that had been heavily advertised for years. And the industry itself seems to be pulling back a bit, probably due to the present wave of lawsuits and the possibility that the companies (and their ad agencies) could be ruined by these and future predatory lawsuits.

But the most interesting aspect of the controversy concerns advertising's status under the First Amendment. Until the 1940s, advertising was legally deemed "mere commercial speech" and not entitled to full protection. Since then, the courts and the Federal Trade Commission, which has primary responsibility for overall regulation, have contorted advertising's status in three ways.

They've radically expanded First Amendment protection in some ways. They've radically constricted the right of advertising some legally saleable products, such as cigarettes and liquor. And they've adopted a curious standard of truth, based upon the premise that the average American is an idiot.

In essence, this standard holds that an advertiser may make any claim he wants, provided it's so ridiculous that no one would believe it. But the minute you start offering facts and figures, expect to get hauled into court.

In other words, a detergent can claim that it's the best cleaner in this or any universe: no problem. But if Boffo claims than it cleans 25 percent better than Penumbra, Boffo can expect to end up in a hearing and/or courtrooms. Thus, the whole trend in advertising for decades now has been away from useful information and toward glitz, nonsense and the display of youthful female flesh.

For pharmaceutical advertising to have real public value, it must deal in facts. But facts get you into trouble, especially with drugs whose problems may become apparent only after years and decades. So perhaps the real question is which direction possible regulation will push this advertising.

Toward the providing of information that rational people need, sometimes desperately? Or toward garbage that may meet government standards, but is worthless?

Editor's Note: Michael Arnold Glueck wrote this week's commentary.

Contact Drs. Glueck and Cihak by e-mail.

Robert J. Cihak, M.D., is a Senior Fellow and Board Member of the Discovery Institute and a past president of the Association of American Physicians and Surgeons. Michael Arnold Glueck, M.D., is a multiple-award-winning writer who comments on medical-legal issues.

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