The courts, prodded on by libertarians, civil libertarians, and corporate-funded think tanks, have afforded more and more protection for "commercial speech," expression in the business interest of the speaker. Commercial speech has a lower level of protection than religious and political expression, but still, in order for the government to regulate it, it has to have a good reason to do so, and the regulation has to be effective.
Expanding protections for commercial speech makes it more difficult to regulate advertising for consumer protection purposes. It makes it harder to enforce privacy laws, to limit the spread of billboards, and to control DTC drug ads.
Sometimes, one wants the government to be limited in its control of advertising, because censorship can masquerade as consumer protection. For instance, the state of Virginia once banned advertising of abortion, but the law was invalidated as unconstitutional.
Supporters of expansive protections for commercial speech often argue that advertising is often more important than political speech. They argue that advertising brings more information into the market, and thus makes the market more efficient. Consumer protections aren't needed because the market will out bad speakers and bad messages in favor of good ones.
I'm not so sure about this. It seems to me that speakers with strong commercial interests will flood the market with their messages, and overwhelm the truth. They'll even intimidate people who call attention to dangerous products.
The consequences of this can be severe. You probably remember Vioxx. Well, the newest potentially dangerous (and in this case pointless) heavily-advertised product appears to be Bengay. The Washington Post reports:
...Now, muscle creams have drawn attention because toxicology tests revealed last week that the April death of a 17-year-old in New York was caused by overusing such rubs.
"Anyone educated [in athletic training] in the last 25 years doesn't advise kids to use that stuff," said Jon Almquist, athletic training specialist for Fairfax County Public Schools. "The demand is due to marketing. That's the only reason why [athletic] trainers even have it."
Arielle Newman, who ran for Notre Dame Academy in Staten Island, was found dead at her home on April 3. Toxicology tests showed that her blood contained lethal amounts of methyl salicylate, an active ingredient commonly found in products such as Bengay and Icy Hot. The New York medical examiner's office reported Newman had used "topical medication to an excess," causing salicylate poisoning over time.
The marketing appeal of muscle creams is one of the few reasons the products still are popular today, Almquist said. He said they provide little more than a placebo effect for their users.
"The chemical [in the rubs] is just an irritant to get the skin warm," Almquist said. "It doesn't do a whole lot physiologically. Physical rubbing [a muscle] is going to cause the most change."
There will come a time where the marketers will get together and broadly challenge the FDA's role in limiting advertising around drugs. When that challenge happens, it's going to be critical for scientists to point out all the examples where advertising drove the use of dangerous products. Let's try to build the record, and I'll start--
-Listerine used to be advertised as effective in preventing deadly diseases, such as the flu and TB.
-Lysol used to be advertised as a douche!
I think the most obvious example is Tylenol. It is advertised as "The one hospitals use most". The implication being that is because it is safe and effective.
But the real reason hospitals use it "most" is because it doesn't cause bleeding, and for patient needing pain relief or fever suppression in conjunction with procedures, you can't prescribe aspirin or other NSAIDS.
In fact, Tylenol is a rather poor pain reliever, and is also probably the single most dangerous over-the-counter drug. There are many instances of people destroying their livers on what was termed at the time a "therapeutic misadventure" in which someone used Tylenol at the maximum dose (but not overdosed), while drinking over the course of a few days. This led in the 90s to the bottle having a warning not to use it with alcohol.
Even without mixing it with alcohol studies have shown therapeutic doses altering liver function tests. And we shouldn't forget, it's one of the most common methods of suicide, since an overdose of Tylenol is only about 10x the max dose.
The truth is adults have no good reason to use tylenol. It makes sense to use it in kids since they shouldn't be given aspirin to avoid Rye syndrome. But in adults, it represents poor pain relief, and high hepatotoxicity relative to the other NSAIDS. That doesn't stop the marketing of course.
The New York medical examiner's office reported Newman had used "topical medication to an excess," causing salicylate poisoning over time.
Typical media hyped misunderstanding of a cause of death. The promixate cause being "excess," rather than the palliative cream. Of course one can't publish a deadly drug story and expect to scare people if the "excess" is emphasized. Anything used to excess can kill you. Remember the recent case of water poisoning? And calling attention to the placebo effect of the cream will only cause the cream to stop working in those aware of its placebo effect. It's interesting that you cannot market a placebo under the name placebo.
The FDA deregulation of DTC ads for supplements (that is, drugs that didn't purport to cure any disease) has to be one of my biggest pet peeves. It's an excellent example of how the "marketplace of ideas" really works- it's about efficacy of message, not actual, scientifically proven benefit.
Although, I have to admit even I was impressed by the sheer audacity of one product's marketers (I can't remember it now- Xenadrine maybe?) that was sold on television for years as a "metabolism" enhancer. One day, an advertisement came on that said not only did the product help you lose weight, it also was a "feel-good" pill. Same product, same formula, new vague benefit.
I about fell out of my chair.
Milton Hershey,a well known philanthorpist and all-around nice guy beleived that his chocolate was a healthy substitute for food. He made chocolate bar that was advertized to meet your nutritional needs for the whole day.
Government oversight of advertzing claims would even protect us from th wishful delusions of well-meaning people.
"I'm not so sure about this. It seems to me that speakers with strong commercial interests will flood the market with their messages, and overwhelm the truth. They'll even intimidate people who call attention to dangerous products."
What you seem to be unsure of is whether or not to trust your fellow citizens to be able to live as responsible adults. Unless someone is committing a fraud, which is already illegal, what is the objection to a business spending its revenue on advertising?
What you seem to be unsure of is whether or not to trust your fellow citizens to be able to live as responsible adults.
Oh, it is to laugh. The same fellow citizens that re-elected Bush in 2004? The same ones that show astronomical rates of obesity in children and adults since the 70s? The same ones that pray for the apocalypse? The same ones that get confused over evolution?
What exactly would be the definition of "responsible adults"? Educated consumers? Critical? Gullible?
Telling the American population at large that it is "responsible" in any sense is pandering. There may be responsible individuals in the mix, but on the whole, not so much.
Yes, please. Regulate.
Seconded; people only make judgements as good as their education, under the best of circumstances, and the education on how to tell "scientifically credible" from "magical thinking" frankly sucks for the majority. Under most circumstances, it never even gets to that point, as there is a huge population which values their emotional impression of something over emotionless, hard-to-process data.
Most companies out to sell things to people -- sell anything, really -- aren't just aware of this, they rely on it. And they have developed some very, very effective techniques to manipulate people emotionally, regardless of any fact.
The old-school economists' attitude that consumers are always rational agents has had to be discarded in the face of abundant evidence that this is not the case.
That is some crazy elitist nonsense there, weird cryptofascism. If you are willing to surrender your autonomy based on some half-assed speculation that everyone else is so stupid they aren't fit to make rational decisions, might I suggest you go live in a hopefully benevolent tyranny somewhere? I think it was FDR who noted the foundation of democracy was the presumption that individuals are uniquely qualified and obligated to uphold their own autonomy.
Kevin, hon, the regulation is not about removing the autonomy of individuals, it is about ensuring that companies do not get free rein to lie to consumers and market anything they want to as anything they feel like saying about it. Because people respond to advertising, regardless of the truth of that advertising; that's not rocket science, simple observation should tell you this.
Luna, you started out saying that without education people are basically unable to be trusted and that the majority is fundamentally irrational. You didn't reply with anything responsive to my point that you are elitist and basically anti-democratic, and I can understand that, since you are.
Companies are run by individuals and already do not have free rein to lie, so you're points there are irrelevant. Fraud is already illegal. But fraud is not the topic of discussion. The topic here is that you think adult people need to be protected from their own inability to separate rhetoric from sound reasoning. That is about as anti-democratic, elitist and paternalistic as you can get.
Kevin -- homeopathy represents a multi-billion dollar industry.
So do TV "psychics" and newspaper astrologers.
In every shopping mall I have ever been in, I've seen places selling "magnet therapy" jewelry.
Televangelists are supported unconditionally, by thousands or tens of thousands of people, even when they have been demonstrated to lie, steal, cheat sexually, and spend all their "donations" on personal luxuries -- I don't see any of them being deprived of donations at all, in fact -- because "they speak for God".
1. Businesses do lie, or stretch the truth to the point that it becomes unrecogniseable.
2. People do believe them; and also,
3. People make more decisions based on emotional preference than on pure rationality.
That's not anti-democratic. That's reality-based.
If you think that this is somehow not the case -- that people are not vulnerable to this, that the vast majority have the education and rationality to reject spending money on this stuff, please do present your evidence. I would be fascinated to see it.
Even educated intelligent people do not base many consumer decisions on an objective analysis of the evidence. Marketing is certainly not about presenting objective evidence.
The whole idea of DTC advertising for drugs is abhorrent to me. Australia does not allow DTC advertising of prescriptions drugs.
The topic here is that you think adult people need to be protected from their own inability to separate rhetoric from sound reasoning. That is about as anti-democratic, elitist and paternalistic as you can get.
So you vote for the libertarian candidates, and I'll vote for the social democrat candidates. Sometimes, you'll live in my paternalistic tyranny and sometimes I'll live in your libertarian haven. And we'll all be happy.
Have you heard that paying taxes makes you feel better? That would explain a lot about libertarians in general. :-)
The funny thing about right-wing libertarians who get all up in arms about regulating corporate speech is that they tend to be damned quiet when it comes to liberties that don't gibe well with the right-wing agenda. If there were a greater burden of proof on companies making vague claims, it would take away my rights how? But when you ask about civil rights for undocumented aliens, womens' rights, etc. they tend to want the government to crack down hard.
I have noticed that many libertarians and 'economic conservatives' feel that it's okay for businesses to deluge consumers with advertising that stretches the truth to the very edge of legality (and legal advertising does not, by any means, imply true advertising), and call this 'commercial free speech'. Caveat emptor, and all.
Yet, when consumers organize a boycott, criticize a corporation for its b.s., call for better regulation, or propose tracking false and misleading claims (or when labor organizes against management, for that matter), they freak out and wildly charge those consumers with 'suppression of free speech' and intimidation. Funny how free speech is only kosher for the rich and powerful, y'know.
I don't see why citizens shouldn't have the right to turn the weapons of marketing, and even b.s., back on the corporations that use it so freely. All's fair...
The tobacco industry's long campaign of ads portraying doctors as advocating smoking, and paying doctors to directly deny or downplay the risks of smoking tobacco are also a good example of how dishonest advertising kills.
Note also Orac's posts about children receiving 'alternative' treatments for otherwise curable cancers. Advertising also plays a role in the selection of such treatments.