What impact will the presidential election have on advertising regulation? That’s the question that Richard Cooper posed to attendees at the Food and Drug Law Institute’s 20th annual Advertising & Promotion Conference in Washington, DC.
Cooper, a partner in the Washington law firm of Williams and Connolly, said that the extent to which the selection of the president will affect advertising will be felt through the appointments that a President John McCain or a President Barack Obama would make and through the participation of the administration in the legislative process.
Although the presidential candidates haven’t talked much about advertising, Cooper said that Sen. McCain has accused Sen.Obama of wanting more regulation. “That tells you that Sen. McCain is positioning himself against regulation.”
Cooper, a former chief counsel of FDA, said that an analysis of Obama’s economic strategy highlighted in The New York Times, pointed out that Obama appreciates the productivity that comes from free markets, but he is probably more willing than Sen. McCain to take governmental action against what might be arguably perceived to be market failures.
Cooper asserted that a President McCain and a President Obama will likely appoint different sorts of people to the US Supreme Court too. “The selection of Gov. Palin as Sen. McCain’s running mate suggests a necessity on Sen. McCain’s part, to shore-up his relationship with the social conservative base of the Republican Party. Presumably that would have some influence on his nominations at the Supreme Court,” Cooper said.
How would that affect advertising? Cooper said that the commercial speech doctrine the First Amendment protection of commercial speech is “absolutely secure.”

“However, it is imaginable that social conservatives appointed to the Supreme Court might—in close constitutional cases, or close cases of interpreting statutory provisions relating to advertising—be somewhat more regulatory in that area then they would be in purely economic areas.”
Cooper said, “social conservatives, as I perceive them, are much more willing to regulate in support of their views in the culture wars than the Republican Party generally is eager to regulate in other areas.”
Cooper told the audience, “I think that it’s fair to say that a President Obama would bring into the executive branch, people more willing to regulate advertising than a President McCain.”

In Cooper’s opinion, an Obama administration would be more supportive than would a McCain administration of initiatives in the Congress that bear on advertising.

For example, Cooper said that at the end of July, both House and Senate legislators introduced the Independent Drug Education and Outreach Act of 2008 to create a program of grants for counter detailing. “At this point all the sponsors of that legislation are Democrats. And one might expect that if the Democrats are successful at both presidential and congressional level in the upcoming elections, that legislation like that might well move forward to enactment probably more likely with a Democratic victory than with a Republican victory.”

Cooper cited tobacco legislation that was approved by the House of Representatives in July of this year that includes multiple restrictions on tobacco advertising. “At least two of which are plainly unconstitutional,” Cooper said citing another piece of legislation that would make it a federal crime for a tobacco company, or anyone else, not limited to a tobacco company, to tell consumers in advertising, or any other medium of communication that tobacco products are regulated by FDA.

He said that there are multiple other provisions in the legislation that severely restrict the ability of the tobacco product manufacturers to advertise their products. “Whatever allowances one makes for the political status of tobacco the advertising provisions of that legislation are not a good precedent,” Cooper said. Cooper said that both Sens. McCain and Obama are co-sponsors of the legislation.
Cooper noted that various other House and Senate committees have been considering legislation to address the perceived problem of target-advertising to people on the basis of their travels on the web. Some legislators have called for some type of electronic privacy legislation. The upcoming elections, Cooper said, may influence whether or not legislation of that type gets enacted.
Administrative actions may also be affected by the outcome of the elections, said Cooper. In July, Cooper said that the FTC reported that in 2006 the food industry spent $1.6 billion marketing foods to children, primarily soda, fast food and cereal. Cooper said that press reports have linked the FTC report to the growing national problem of obesity. “It’s not clear what the FTC will do to follow-up its report,” he said. “But social pressures on advertisers to exercise greater self-restraint may build.”

At FDA, Cooper said, advertising initiatives are initiated at the career level, said Cooper, however, he noted that overall policy emanates from the White House, The Office of Management and Budget. “At the FDA, the Commissioner can set a tone that the career people at the agency will need to follow. There would be differences between a McCain and an Obama administration in that regard,” Cooper concluded.