Rep. Henry Waxman, perhaps the most dangerous man in Washington that you could ever want to have a policy disagreement with this side of “Shotgun” Dick Cheney, strode into the
lion’s den last month when he addressed the DTC National conference in Washington.
The lions were left licking their wounds.
Waxman, the congressman from California who spent nearly 20 years as the top Democrat on a key House subcommittee on health, demonstrated a firm command of the arguments against DTC and little interest in finding middle ground. He did concede, in response to a questioner, that DTC might have some positive effects, though he earlier insisted there was no evidence drug ads improved public health and plenty of evidence to the contrary.
Perhaps Waxman has never heard of, say, the Prevention and FDA studies showing ads drive more than sales, sending patients with undiagnosed chronic conditions to their doctors. More
likely, being a politician, he’s cherry-picking the facts that support his conclusions, much as he accuses manufacturers of doing, in order to stake out an extreme bargaining position that he knows would slip toward the center in conference.
So the battle to define the center is on. Talking points and strategies for constitutional challenges were disseminated to conference-goers along with tchotchkes. Grave warnings rained down from the podium. The Waxman-Markey bill and its Senate cousin, Kennedy-Enzi, were described as an “elitist” and “paternalistic” attempt to “keep consumers in the dark,” curbing demand for new drugs by censoring commercial speech and making “guinea pigs” of those who got them despite the promotional blackout. Attendees got a crash course in constitutional law, learning more than they ever wanted to know about Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) and Thompson v. Western States Medical Center (2002).
The Waxman-Markey bill isn’t going anywhere without the assent of Energy & Commerce Committee baron John Dingell (D-MI), who seems inclined to uncouple it from PDUFA legislation. At press time, Kennedy-Enzi doesn’t have the votes to make it out of committee, as evidenced by a missed markup date, and Sens. Christopher Dodd and Chuck Grassley have sponsored a less-draconian rival bill. In a worst-case scenario, most observers agree that the extreme restrictions on marketing wouldn’t pass muster with the Supreme Court, having established precedents dictating that government must exhaust all alternatives before moving to limit speech.
But Rep. Waxman’s strongest line of attack—new drugs often carry unknown risks and promoting them amplifies those risks by exposing larger numbers of patients to them—isn’t going away. One of Waxman’s questioners at the DTC National angrily asked him why he doesn’t go bother the purveyors of high-fructose corn syrup instead. On the question of drug safety and consumer promotion, the industry will have to come up with a better argument than that.