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The American Journal of Bioethics Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uajb20
Direct-to-Consumer Advertising of Health-Related Goods and Services Donald Thompson
a
a
Penn State University Published online: 04 Mar 2014.
Click for updates To cite this article: Donald Thompson (2014) Direct-to-Consumer Advertising of Health-Related Goods and Services, The American Journal of Bioethics, 14:3, 53-54, DOI: 10.1080/15265161.2013.879961 To link to this article: http://dx.doi.org/10.1080/15265161.2013.879961
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
Advertising for Health Care Services
Direct-to-Consumer Advertising of Health-Related Goods and Services
Downloaded by [Northwestern University] at 12:56 01 February 2015
Donald Thompson, Penn State University Schenker and colleagues (2014) argue for a fiduciary responsibility of health care institutions to patients as an extension of the fiduciary responsibility of the physician. They suggest that direct-to-consumer advertising (DTCA) by these health care institutions is problematic in a way similar to DTCA of pharmaceuticals. They see “fundamental differences between health care and consumer goods.” They then point out a regulatory lacuna concerning advertising of health care services. I agree that advertising for goods and services on the basis of health is of concern. In my opinion their focus on health care institutions is too narrow. Their argument would be more powerful if generalized to a fuller range of goods and services advertised on the basis of health. They include food in the category of “other types of goods,” as distinct from the category of health care goods. I suggest that the distinction they make concerning other consumer goods needs to be adjusted to include food products when they are advertised on the basis of health. The basis for my distinction among consumer goods is similar logically to the way Food and Drug Administration (FDA) distinguishes food from drugs: An apparent food item is a drug if it is marketed as a drug. Thus, I propose that a “health care product” should be an item marketed on the basis of health. A food item marketed using an FDA-approved health claim would also be a health care product. I suggest that any food product explicitly or tacitly advertised as of benefit to health, especially with respect to the risk of chronic noncommunicable disease, has in effect been voluntarily defined as a health care product by the company marketing it. According to the Institute for Advertising Ethics (IAE), the “nature of the product” bears on how the product should be advertised (IAE 2011). The company that gains a marketing advantage through this decision should properly accept a responsibility that goes with this advantage. This responsibility carries moral weight and should constrain advertising as compared to that for consumer products in general. Schenker and colleagues describe the physician–patient relationship to establish the concept of a fiduciary responsibility. This two-person relationship provides a context for what Klempner (2004) considers a “moral dialogue” between two natural persons (see Scruton and Finnis 1989). Although in the physician–patient relationship there is a strong asymmetry of knowledge between the two persons, the two are understood to be working cooperatively toward the good of the patient. This understanding of the personal relationship is the basis for trust in the interpersonal and
moral sense that Baier (1994) prefers for this term. The longstanding American Medical Association (AMA) prohibition on DTCA by a physician lasted until 1980, when it was disallowed in the courts. I argue that among other effects, this advertising altered the understanding of cooperativity in this interpersonal relationship by calling attention to its commercial nature. That the prohibition was disallowed in the courts on the basis of a free speech argument does not detract from the adverse effect of DTCA on the relationship. In addition to the moral consideration of the dialogic interpersonal relationship, the physician’s obligation to work in the best interests of the patient establishes the fiduciary nature of the relationship. As Schenker and colleagues point out, in this relationship there is a strong asymmetry of knowledge, the patient is unable to judge the quality of the product experientially, and the outcome is highly significant to the patient’s physical being. The patient relies on the physician to discharge a fiduciary responsibility and may also trust as part of a dialogical personal relationship. Perhaps the most compelling moral argument for a fiduciary responsibility is the potential effect on the patient’s future capabilities (Beauchamp and Childress 2013). When we consider DTCA more broadly, we see that DTCA is never part of a moral dialogue between two persons; rather, it involves a relationship between a corporation and a segment of the market, a collective referred to at times as “the” target consumer. Interpersonal trust is impossible; only reliance remains possible. Even when advertising is for a generic consumer product, the corporation still has the obligation to “respect the rights and interests of the audience” (Pontifical Council 1997) and to “do what is best for the consumer” (IAE 2011). So much stronger is the obligation if the product involves a person’s health. When prescription pharmaceuticals were marketed only to physicians, physicians could apply the information in the context of a particular physician–patient relationship. There was no unmediated relationship between the pharmaceutical company and the patient. But with DTCA, this changed. Claims made to the consumer concerning health establish a moral expectation akin to a fiduciary relationship, properly assigning an element of moral responsibility to the corporation for the health of the patient, even though the physician still mediates the relationship. There is a strong analogy of DTCA of food for health to DTCA of pharmaceuticals (as Marks [2013] has argued). This analogy is especially strong for food marketed with respect to chronic disease. In both situations an individual
Address correspondence to Donald Thompson, Penn State University, Food Science Building, University Park, PA 16802, USA. E-mail: [email protected]
March, Volume 14, Number 3, 2014
ajob 53
Downloaded by [Northwestern University] at 12:56 01 February 2015
The American Journal of Bioethics
consumer is given to understand a health benefit from the purchase. For example, the FDA has approved the label statement that eating a sufficient quantity of oats “may reduce the risk of heart disease.” One important disanalogy is that for food the physician has little or no opportunity to mediate the relationship between the commercial firm and the consumer, as Marks (2013) has pointed out. As for pharmaceuticals there is a strong asymmetry of knowledge, the customer is unable to judge the quality of the product experientially, and the outcome is highly significant to the customer’s physical being. Thus, the fiduciary responsibility of the advertiser is greater than for DCTA of pharmaceuticals. Although the benefits or harms may not be as immediately consequential as for pharmaceuticals, the large number of people who self-treat over a long time could result in a great number of affected persons. Schenker and colleagues rightly object to nonpropositional methods of advertising health care services. Earlier this year in this journal a similar criticism was made concerning DTCA of pharmaceuticals, that it undermines “epistemic autonomy” and “fosters unjustified beliefs” (Biegler and Vargas 2013). This objection can be readily generalized to problematizing nonpropositional methods of advertising a wide range of health care goods and services. Considering the asymmetry of knowledge between the consumer and the institution doing the advertising, the advertiser who identifies a good or service as healthful should be expected to make a clear statement in support of this proposition, rather than presenting partial or peripherally important information. The scientific truth content of the propositional content should be amenable to evaluation to hold the advertiser accountable. Speech that is free to confuse the consumer about health is certainly not in the interest of individuals or society as a whole. There should be an emphasis on this propositional content relative to nonpropositional content in the advertising so that the consumer is more free to decide on the basis of propositional merit. Gert, Culver, and Clouser (2006) describe the importance of rational consent by a patient to treatment by a physician. Although the relationship between the advertiser and the consumer in a mass market is in many respects unlike the relationship between a particular physician and a particular patient, a consumer decision about health should still be made rationally, as if it were a treatment, consistent with the principle of rational consent. Although it would be unreasonable to presume of cooperation and have an attitude of personal trust for an impersonal commercial relationship (as compared to the physician–patient relationship), something like the fiduciary responsibility of the physician should still accrue to the advertiser making the recommendation. The history of food advertising is germane here in two respects: Food advertising has a long record of employing nonpropositional content, but the marketing of food for health is relatively recent. Before the mid 1980s FDA regulations precluded propositional advertising or marketing foods on the basis of health with respect to chronic disease. Food advertising continues to employ nonpropo-
54 ajob
sitional methods of advertising that are employed for consumer goods in general. This strategy has continued despite FDA regulations prescribing label wording concerning allowable health propositional content. As Schenker and colleagues argue concerning the use of confusing propositional content and nonpropositional content to advertise health care institutions, for food advertised on the basis of health this approach is at best distracting from the propositional message and at worst it is misleading. Although space precludes presenting an argument in full here, another way that the argument by Schenker and colleagues is unduly particular is the focus on advertising rather than more broadly on marketing, even as they give a nod to the “marketing mix” as the context for advertising. Marketing includes product (which for packaged food includes the label information and design), promotion (which includes advertising and public relations, the latter including promoting positive stories to the media), price, and placement. The moral responsibility I argue for pertains to all aspects of marketing goods and services on the basis of health.
REFERENCES Baier, A. 1994. Trusting people. In Moral prejudices, 183–202. Cambridge, MA: Harvard University Press. Beauchamp, T. L., and J. F. Childress. 2013. Principles of biomedical ethics, 7th ed. Oxford, UK: Oxford University Press. Biegler, P., and P. Vargas. 2013. Ban the sunset? Nonpropositional content and regulation of pharmaceutical advertising. American Journal of Bioethics 13(5): 3–13. Gert, B., C. M. Culver, and K. D. Clouser. 2006. Adequate information, competence, and coercion. In Bioethics: A systematic approach, 2nd ed., 213–236. Oxford, NY: Oxford University Press. Institute of Advertising Ethics. 2011. Principles and practices for advertising ethics. Available at: http://www.aaf.org/images/pub lic/aaf content/images/ad%20ethics/IAE Principles Practices. pdf (accessed December 12, 2013). Klempner, G. 2004. Ethics in advertising. Available at: http:// klempner.freeshell.org/articles/advertising.html (accessed December 12, 2013). Marks, J. 2013. Objects closer than they appear: Regulating healthbased advertising of food. American Journal of Bioethics 13(5): 23– 25. Pontifical Council for Social Communications. 1997. Ethics in advertising. Available at: http://www.vatican.va/roman curia/ pontifical councils/pccs/documents/rc pc pccs doc 22021997 et hics-in-ad en.html (accessed December 12, 2013). Schenker, Y., R. M. Arnold, and A. London. 2014. The ethics of advertising for health care services. American Journal of Bioethics 14(3): 34–43. Scruton, R., and J. Finnis. 1989. Corporate persons. Proceedings of the Aristotelian Society Supplementary Volumes 63: 239–274. Available at: http://www.sci.brooklyn.cuny.edu/∼schopra/Persons/ ScrutonFinnis.pdf (accessed December 12, 2013).
March, Volume 14, Number 3, 2014
The American Journal of Bioethics Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uajb20
Direct-to-Consumer Advertising of Health-Related Goods and Services Donald Thompson
a
a
Penn State University Published online: 04 Mar 2014.
Click for updates To cite this article: Donald Thompson (2014) Direct-to-Consumer Advertising of Health-Related Goods and Services, The American Journal of Bioethics, 14:3, 53-54, DOI: 10.1080/15265161.2013.879961 To link to this article: http://dx.doi.org/10.1080/15265161.2013.879961
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
Advertising for Health Care Services
Direct-to-Consumer Advertising of Health-Related Goods and Services
Downloaded by [Northwestern University] at 12:56 01 February 2015
Donald Thompson, Penn State University Schenker and colleagues (2014) argue for a fiduciary responsibility of health care institutions to patients as an extension of the fiduciary responsibility of the physician. They suggest that direct-to-consumer advertising (DTCA) by these health care institutions is problematic in a way similar to DTCA of pharmaceuticals. They see “fundamental differences between health care and consumer goods.” They then point out a regulatory lacuna concerning advertising of health care services. I agree that advertising for goods and services on the basis of health is of concern. In my opinion their focus on health care institutions is too narrow. Their argument would be more powerful if generalized to a fuller range of goods and services advertised on the basis of health. They include food in the category of “other types of goods,” as distinct from the category of health care goods. I suggest that the distinction they make concerning other consumer goods needs to be adjusted to include food products when they are advertised on the basis of health. The basis for my distinction among consumer goods is similar logically to the way Food and Drug Administration (FDA) distinguishes food from drugs: An apparent food item is a drug if it is marketed as a drug. Thus, I propose that a “health care product” should be an item marketed on the basis of health. A food item marketed using an FDA-approved health claim would also be a health care product. I suggest that any food product explicitly or tacitly advertised as of benefit to health, especially with respect to the risk of chronic noncommunicable disease, has in effect been voluntarily defined as a health care product by the company marketing it. According to the Institute for Advertising Ethics (IAE), the “nature of the product” bears on how the product should be advertised (IAE 2011). The company that gains a marketing advantage through this decision should properly accept a responsibility that goes with this advantage. This responsibility carries moral weight and should constrain advertising as compared to that for consumer products in general. Schenker and colleagues describe the physician–patient relationship to establish the concept of a fiduciary responsibility. This two-person relationship provides a context for what Klempner (2004) considers a “moral dialogue” between two natural persons (see Scruton and Finnis 1989). Although in the physician–patient relationship there is a strong asymmetry of knowledge between the two persons, the two are understood to be working cooperatively toward the good of the patient. This understanding of the personal relationship is the basis for trust in the interpersonal and
moral sense that Baier (1994) prefers for this term. The longstanding American Medical Association (AMA) prohibition on DTCA by a physician lasted until 1980, when it was disallowed in the courts. I argue that among other effects, this advertising altered the understanding of cooperativity in this interpersonal relationship by calling attention to its commercial nature. That the prohibition was disallowed in the courts on the basis of a free speech argument does not detract from the adverse effect of DTCA on the relationship. In addition to the moral consideration of the dialogic interpersonal relationship, the physician’s obligation to work in the best interests of the patient establishes the fiduciary nature of the relationship. As Schenker and colleagues point out, in this relationship there is a strong asymmetry of knowledge, the patient is unable to judge the quality of the product experientially, and the outcome is highly significant to the patient’s physical being. The patient relies on the physician to discharge a fiduciary responsibility and may also trust as part of a dialogical personal relationship. Perhaps the most compelling moral argument for a fiduciary responsibility is the potential effect on the patient’s future capabilities (Beauchamp and Childress 2013). When we consider DTCA more broadly, we see that DTCA is never part of a moral dialogue between two persons; rather, it involves a relationship between a corporation and a segment of the market, a collective referred to at times as “the” target consumer. Interpersonal trust is impossible; only reliance remains possible. Even when advertising is for a generic consumer product, the corporation still has the obligation to “respect the rights and interests of the audience” (Pontifical Council 1997) and to “do what is best for the consumer” (IAE 2011). So much stronger is the obligation if the product involves a person’s health. When prescription pharmaceuticals were marketed only to physicians, physicians could apply the information in the context of a particular physician–patient relationship. There was no unmediated relationship between the pharmaceutical company and the patient. But with DTCA, this changed. Claims made to the consumer concerning health establish a moral expectation akin to a fiduciary relationship, properly assigning an element of moral responsibility to the corporation for the health of the patient, even though the physician still mediates the relationship. There is a strong analogy of DTCA of food for health to DTCA of pharmaceuticals (as Marks [2013] has argued). This analogy is especially strong for food marketed with respect to chronic disease. In both situations an individual
Address correspondence to Donald Thompson, Penn State University, Food Science Building, University Park, PA 16802, USA. E-mail: [email protected]
March, Volume 14, Number 3, 2014
ajob 53
Downloaded by [Northwestern University] at 12:56 01 February 2015
The American Journal of Bioethics
consumer is given to understand a health benefit from the purchase. For example, the FDA has approved the label statement that eating a sufficient quantity of oats “may reduce the risk of heart disease.” One important disanalogy is that for food the physician has little or no opportunity to mediate the relationship between the commercial firm and the consumer, as Marks (2013) has pointed out. As for pharmaceuticals there is a strong asymmetry of knowledge, the customer is unable to judge the quality of the product experientially, and the outcome is highly significant to the customer’s physical being. Thus, the fiduciary responsibility of the advertiser is greater than for DCTA of pharmaceuticals. Although the benefits or harms may not be as immediately consequential as for pharmaceuticals, the large number of people who self-treat over a long time could result in a great number of affected persons. Schenker and colleagues rightly object to nonpropositional methods of advertising health care services. Earlier this year in this journal a similar criticism was made concerning DTCA of pharmaceuticals, that it undermines “epistemic autonomy” and “fosters unjustified beliefs” (Biegler and Vargas 2013). This objection can be readily generalized to problematizing nonpropositional methods of advertising a wide range of health care goods and services. Considering the asymmetry of knowledge between the consumer and the institution doing the advertising, the advertiser who identifies a good or service as healthful should be expected to make a clear statement in support of this proposition, rather than presenting partial or peripherally important information. The scientific truth content of the propositional content should be amenable to evaluation to hold the advertiser accountable. Speech that is free to confuse the consumer about health is certainly not in the interest of individuals or society as a whole. There should be an emphasis on this propositional content relative to nonpropositional content in the advertising so that the consumer is more free to decide on the basis of propositional merit. Gert, Culver, and Clouser (2006) describe the importance of rational consent by a patient to treatment by a physician. Although the relationship between the advertiser and the consumer in a mass market is in many respects unlike the relationship between a particular physician and a particular patient, a consumer decision about health should still be made rationally, as if it were a treatment, consistent with the principle of rational consent. Although it would be unreasonable to presume of cooperation and have an attitude of personal trust for an impersonal commercial relationship (as compared to the physician–patient relationship), something like the fiduciary responsibility of the physician should still accrue to the advertiser making the recommendation. The history of food advertising is germane here in two respects: Food advertising has a long record of employing nonpropositional content, but the marketing of food for health is relatively recent. Before the mid 1980s FDA regulations precluded propositional advertising or marketing foods on the basis of health with respect to chronic disease. Food advertising continues to employ nonpropo-
54 ajob
sitional methods of advertising that are employed for consumer goods in general. This strategy has continued despite FDA regulations prescribing label wording concerning allowable health propositional content. As Schenker and colleagues argue concerning the use of confusing propositional content and nonpropositional content to advertise health care institutions, for food advertised on the basis of health this approach is at best distracting from the propositional message and at worst it is misleading. Although space precludes presenting an argument in full here, another way that the argument by Schenker and colleagues is unduly particular is the focus on advertising rather than more broadly on marketing, even as they give a nod to the “marketing mix” as the context for advertising. Marketing includes product (which for packaged food includes the label information and design), promotion (which includes advertising and public relations, the latter including promoting positive stories to the media), price, and placement. The moral responsibility I argue for pertains to all aspects of marketing goods and services on the basis of health.
REFERENCES Baier, A. 1994. Trusting people. In Moral prejudices, 183–202. Cambridge, MA: Harvard University Press. Beauchamp, T. L., and J. F. Childress. 2013. Principles of biomedical ethics, 7th ed. Oxford, UK: Oxford University Press. Biegler, P., and P. Vargas. 2013. Ban the sunset? Nonpropositional content and regulation of pharmaceutical advertising. American Journal of Bioethics 13(5): 3–13. Gert, B., C. M. Culver, and K. D. Clouser. 2006. Adequate information, competence, and coercion. In Bioethics: A systematic approach, 2nd ed., 213–236. Oxford, NY: Oxford University Press. Institute of Advertising Ethics. 2011. Principles and practices for advertising ethics. Available at: http://www.aaf.org/images/pub lic/aaf content/images/ad%20ethics/IAE Principles Practices. pdf (accessed December 12, 2013). Klempner, G. 2004. Ethics in advertising. Available at: http:// klempner.freeshell.org/articles/advertising.html (accessed December 12, 2013). Marks, J. 2013. Objects closer than they appear: Regulating healthbased advertising of food. American Journal of Bioethics 13(5): 23– 25. Pontifical Council for Social Communications. 1997. Ethics in advertising. Available at: http://www.vatican.va/roman curia/ pontifical councils/pccs/documents/rc pc pccs doc 22021997 et hics-in-ad en.html (accessed December 12, 2013). Schenker, Y., R. M. Arnold, and A. London. 2014. The ethics of advertising for health care services. American Journal of Bioethics 14(3): 34–43. Scruton, R., and J. Finnis. 1989. Corporate persons. Proceedings of the Aristotelian Society Supplementary Volumes 63: 239–274. Available at: http://www.sci.brooklyn.cuny.edu/∼schopra/Persons/ ScrutonFinnis.pdf (accessed December 12, 2013).
March, Volume 14, Number 3, 2014
