A Stitch in Haste

I am on record as advocating full First Amendment protection for truthful commercial advertising (today such advertising enjoys only partial constitutional protection -- see Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980)).

I am also on record, however, as not being too concerned, qua libertarian, with government licensing of the true professions -- law, medicine, accounting, veterinary, etc. (I redeem myself, however, by concurring that hair-braiding, pedicabbing and casket-selling are not "professions" and should not be subject to licensing.)

So what then am I to make of this?

Dr. Robert Jarvik is best known for the artificial heart he pioneered more than a quarter-century ago. Since then he had toiled in relative obscurity -- until he began appearing in television ads two years ago for the Pfizer cholesterol drug Lipitor.

The ads have depicted him, among other outdoorsy pursuits, rowing a one-man racing shell swiftly across a mountain lake. "When diet and exercise aren't enough, adding Lipitor significantly lowers cholesterol," Dr. Jarvik says in the ad.
...
A Congressional committee, concerned that the Lipitor ads could be misleading, has said it wants to interview Dr. Jarvik about his role as the drug's pitchman.

Some of the questions may involve his credentials. Even though Dr. Jarvik holds a medical degree, for example, he is not a cardiologist and is not licensed to practice medicine. So what, critics ask, qualifies him to recommend Lipitor on television -- even if, as he says in some of the ads, he takes the drug himself?

And, for that matter, what qualifies him to pose as a rowing enthusiast? As it turns out, Dr. Jarvik, 61, does not actually practice the sport. The ad agency hired a stunt double for the sculling scenes.

Another report indicates that Pfizer is paying Jarvik $1.35 million to serve as "Dr. Lipitor."

Some hasty stitches:

--The fake sculling is obnoxious. Point conceded. Is it fraudulent as a matter of law? Probably not.

--Indeed, there is apparently not one expressly false statement in the ads. Jarvik does have an M.D. degree; his father did die of heart disease; he did invent an artificial heart; he does take Lipitor. He never says he is a cardiologist; indeed he never says he is licensed to practice.

--Meanwhile, it was the private sector -- media watchdog groups, medical bloggers, etc. (not to mention rowers) -- who caught Pfizer's maneuver and called them out on it. Isn't the current paradigm of "design and run your ads as you see fit, but be ready to defend them against critical reviewers" better than requiring that they be subjected to a censor panel -- or banning them outright? Throw out the whole barrel because of a few rotten apples?

--Most importantly in my view, Jarvik never "recommends" Lipitor. Indeed, these direct-to-consumer ("DTC") ads never recommend anything other than, "Ask you doctor whether Kipitor is right for you." So the idea that Jarvik, or any other non-licensed non-physician, should be blocked as a matter of law from serving as a paid spokesperson for a drug is untenable, in my opinion.

--Lipitor is hardly new; point conceded. But I personally (i.e., in a strictly non-central-planner way) think it's great that pharmaceutical companies can tell people directly that there is a new statin, or incontinence drug or arthritis treatment that they should ask their doctor about.

Bottom Line: Knowledge is power. In more ways than one.