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!