Congressman Jim Moran (D-VA) recently reintroduced H.R.2175, The Families for ED Advertising Decency Act. This legislation imposes a sweeping ban on the airing of all ads for medications to combat erectile dysfunction (ED) between the hours of six in the morning to ten o’clock at night. Congressman Moran states that these broad restrictions are necessary to protect children from the “indecent” warnings aired during these ads. This proposal is misguided, counterproductive and if enacted, unconstitutional.
Ironically, the trigger for this censorship scheme is the inclusion of governmentally mandated warnings in the ads themselves. The government simply cannot force companies to serve as a megaphone for their messages and then punish them for it by drastically restricting their speech. The U.S. Supreme Court has made crystal clear that even where the subject of ads could be claimed to be “embarrassing” or “offensive” to some segment of the audience that fact does not authorize government bans or restrictions.
The Court, for example, in Carey v. Population Services noted that, “At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.” The Court also emphasized in Butler v. Michigan and Lorillard Tobacco Co. v. Reilly that where legal products are being sold to adults, the fact that some children will see the ads does not allow the government “to lower discourse in society to the level of the sandbox.”
The effort to substantially suppress the running of these ads completely overlooks their important health benefits. In a study of over one million men who went to their doctors to discuss ED problems due to viewing ads discussing ED, over 140,000 of them were found to be suffering from serious and unsuspected health conditions like severe high blood pressure. High blood pressure is rightly known as the “silent killer” and this early detection may have saved many lives or avoided other highly significant adverse health consequences. An additional thirty-three thousand men in this group were found to have diabetes, which if not effectively treated can create an increased risk of blindness, kidney failure, stroke or heart attacks.
The prescription drug industry through the Pharmaceutical Research and Manufacturers Association (PhRMA) has developed Guiding Principles on direct to consumer advertising, which states that these companies will target these types of ads to an overwhelmingly adult audience. For all of these reasons, the Congress should oppose these efforts to suppress and restrict ED ads. Instead of tobogganing down this slippery slope of speech censorship, the Congress should categorically reject the increasing efforts to censor an ever growing number of categories of advertising as “indecent.”
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