On 6/13/06, Ursula Stange <Ursula@xxxxxxxxxx> wrote:
It boils down, I think, to which "right' trumps which. Is it more important to satisfy the media's 'right' to print and air what they want (even if, in this case, their clearly stated motive is profit)? Or is it more important to protect the community's 'right' to keep health care affordable (if in fact, the law against direct to consumer advertising does that)? At bottom it's a philosophical issue. Ursula
In this connection, allow me to recommend Robert Kuttner (1996) Everything for Sale: The Virtues and Limits of Markets. Chicago: University of Chicago Press.
Kuttner builds a strong case for distinguishing between markets based on the urgency of need and the buyer's ability to make rational choices. Thus, for example, soft drinks are a sector in which letting market forces run loose may expose some consumers (those who guzzle large quantities of heavily sugared liquid) to ill effects. But consumers standing in front of soft drink vending machines or pushing shopping carts through supermarkets are (1) not compelled to buy soft drinks instead of fruit or vegetable juices and (2) the risks of obesity and ill-health are relatively distant ones, allowing time for rational reflection and calculation. Even here, however, there may be a case for certain forms of regulation, e.g., prohibiting the sale of soft drinks in vending machines at schools, on the grounds that elementary school students both lack the relevant information and the trained skill in calculation that rational choice assumes.
In contrast to soft drinks, consider emergency health care. Someone who has suffered a heart attack or massively traumatic accident may be in no position to choose a doctor or hospital, and being forced to travel to one covered by their HMO instead of a closer ER may, in fact, be fatal. The case for universal health care as a positive right is, in this case, a strong one. Still one may ask, should its benefits cover such treatments as elective plastic surgeries or drugs for erectile dysfunction. Here, letting the market rule may be the right solution.
The case in hand is a tricky one. Pharmaceutical companies claim that they need large profits to fund increasingly expensive research. If, however, marketing expenses exceed research, production and distribution costs and result in raising the costs of prescription drugs vital to the health and well-being or the mitigation of suffering to people who may not be able to afford them, the case for banning the advertising that accounts for the larger fraction of the marketing budget may, indeed, be strong enough to counter the free-speech claims of corporations, which are, after all, only artificial persons to whom the ascription of rights is inherently tendentious.
-- John McCreery The Word Works, Ltd., Yokohama, JAPAN
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