January 30, 2008

Jeff Perlman, Executive Vice President – Government Affairs
Clark Rector Jr., Senior Vice President – State Government Affairs
Robert Kohlmeyer, Coordinator – Government Affairs

FCC to Consider TV Product Placement Disclosure

The Federal Communications Commission is considering whether televised product placement (or "embedded advertising" in the Commission's terminology) should be accompanied by a simultaneous disclosure. Rather than being brought up in a public hearing, the proposal is currently on circulation among the commissioners. This means they could initiate a Notice of Proposed Rulemaking with no public discussion of the issue. The American Advertising Federation has joined with the American Association of Advertising Agencies and the Association of National Advertisers to send a letter to the commissioners arguing that a Notice of Proposed Rulemaking would create a presumption that regulation is necessary. Instead, the FCC should initiate a Notice of Inquiry, which would allow the commission to examine the issue to determine if any problems exist before considering possible regulatory solutions. A copy of the letter is available here Word document. In 2005, the Federal Trade Commission declined to take action on a similar product placement disclosure proposal, arguing that there was no evidence that product placement was unfair or deceptive or causes harm.
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Reps. Dingell and Stupak Inquire About Cholesterol Drug Ads

House Energy and Commerce Committee Chairman John Dingell, D-Mich., and Oversight and Investigations Subcommittee Chairman Bart Stupak, D-Mich., have written letters to Food and Drug Administration Commissioner Andrew von Eschenbach and several pharmaceutical companies seeking answers to concerns over the approval of advertisements for two common pharmaceutical products.

Advertisements for Lipitor, a cholesterol medication produced by Pfizer, featuring Dr. Robert Jarvik, inventor of the artificial heart, were criticized because of concern that "consumers may misinterpret the health claims of a prescription drug promoted in a direct-to-consumer advertisement utilizing a celebrity physician." While the congressmen continue to seek information about the credibility of the ads, Pfizer said in a statement that they take DTC advertising very seriously, noting, "Our foremost concern is that the tone and content are appropriate for the intended audiences, and that it will ultimately result in encouraging valuable patient/physician dialogue, that can lead to appropriate treatment."

Reps. Dingell and Stupak separately wrote the FDA, as well as Merck & Co. and Schering-Plough Corp., who manufacture another cholesterol medication, Vytorin. In those letters, the congressmen asked why the companies continued to air advertisements for the drug when they had study data that may doubt the product's effectiveness.
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Sens. Kennedy and Waxman Renew Intent to Increase FDA Regulation of Over-the-Counter Drug Ads

Senate Health, Education, Labor and Pensions Committee Chairman Ted Kennedy, D-Mass., and House Committee on Oversight and Government Reform Chairman Henry Waxman, D-Calif., have reiterated their intent to pass legislation that would expand the Food and Drug Administration's authority over direct-to-consumer ads for drug products sold over the counter, including the possibility of reviewing ads before they air. The Nonprescription Drug Modernization Act of 2007 (S. 2311 and H.R. 4083) was introduced in November but no hearings have been held.
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Digital Television Transition Hearings Scheduled

On February 14, the Senate Commerce, Science and Transportation Committee will hold a hearing on the status of government and industry efforts to prepare the public for the 2009 analog to digital television transition. Additionally, the House Energy and Commerce Committee Telecommunications and the Internet Subcommittee will hold its own digital television transition hearing on February 13.
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