May 7, 2009


Clark Rector Jr., Senior Vice President – Government Affairs





Congressman Calls Prescription Drug Ads Indecent – Proposes Limits on Broadcast

Rep. Jim Moran (D-Va.) has introduced legislation that would effectively bar broadcasters from airing any ads for erectile dysfunction drugs or “male enhancement” products between 6:00 am and 10:00 pm. This limitation would include ads for products including Viagra and Cialis, drugs which have had a demonstrable positive impact on men’s health. Moran would accomplish this limitation by essentially requiring that any of the ads be examined under the FCC’s indecency enforcement authority. The FCC has determined that content deemed “indecent” should only be aired between 10:00 p.m. and 6:00 a.m. The House Democratic Leadership has not taken a position on this legislation and there are presently no hearings scheduled. The AAF is of the view that these ads serve a very positive function in the overall health care scheme. Likewise, we believe these ads as a category are not indecent and are protected by the First Amendment.
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House Commerce Committee Expected to Take Up Green Claims

The House Energy and Commerce Committee is reported to be looking at new hearings to examine “green marketing advertising claims.” No agenda or date for the hearings has been provided as of this writing.
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Justice Scalia on Privacy

In a January presentation to the Institute of American and Talmudic Law Supreme Court Justice Antonin Scalia weighed into the debate over privacy laws by saying such laws might not be constitutional. Justice Scalia’s views are particularly relevant at this time since a number of privacy bills will be debated this year in the Congress. The FTC also is looking at possible privacy rules. Scalia was asked whether there were situations that might merit protection, such as when former Supreme Court nominee Robert Bork’s video rental records were published in newspapers across the country. , Scalia acknowledged that certain categories of “sensitive” information might indeed warrant protection. An interesting follow up event casts light on Scalia’s views. After Scalia’s presentation one law professor in the audience had his class put together a file including Scalia’s home address, telephone number, wife’s email and some information about Scalia’s grandchildren. Scalia responded, “It is silly to think that every single datum about my life is private. It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time.”
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FDA Nominee to Face Congress

Dr. Margaret A. Hamburg, President Obama’s nominee for Commissioner of the Food and Drug Administration, was scheduled to appear before the Senate Health, Education, Labor and Pensions (HELP) Committee on Thursday, May 07, 2009. The Republican minority confirms that Dr. Hamburg is expected to face little, if any, opposition. The hearing comes shortly after Chairman Edward Kennedy (D-Mass.) introduced his version of legislation to give the FDA authority to regulate tobacco products and the advertising of those products. The bill has been scheduled for committee mark up on May 12. Similar legislation has already passed the House of Representatives.


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