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Executive Summary

Rx DRUG DIRECT-TO-CONSUMER ADS BAN URGED BY NAPM in a March 7 letter to FDA Commissioner Kessler. " We believe that there is a legal basis for banning [product-specific] prescription drug advertising to the consumer without facing a constitutional free speech challenge," the National Association of Pharmaceutical Manufacturers said. Signed by the generic drug association President Robert Milanese and General Counsel Milton Bass (New York firm Bass & Ullman), the letter states that NAPM shares the commissioner's "concerns and believes prescription drugs should not be advertised to the consumer." Commissioner Kessler has testified before Congress that he is concerned about abuses of advertising regulations by the brandname pharmaceutical industry and about the dangers of direct-to-consumer promotions. Noting that a product "is classified as a prescription drug because the consumer is not deemed capable of diagnosing his condition or safely self-medicating with such a drug," they argued that a consumer therefore is "not deemed capable, as a matter of law, of exercising judgment relative to the purchase and use of such drugs." Consequently, Milanese and Bass said, "advertising to the consumer necessarily would be deceptive and misleading." Any benefit "allegedly accomplished by such advertising is far outweighed by the dangers of deception and misleading information," the letter contends. "The only exceptions that we can see justified would be institutional and price advertising."

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