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Vytorin, Procrit, Lipitor TV Ads Subject of Congress Probe

May 6, 2008 | Parker Waichman Alonso LLP

A U.S. congressional panel is now examining television ads for cholesterol drugs Lipitor and Vytorin and for the anemia drug Procrit at a Thursday hearing.  The panel is looking to determine if such commercials are deceptive or misleading.  Representatives of the companies that make the drugs—Pfizer Inc., Johnson & Johnson, Merck & Co Inc, and Schering-Plough Corporation—will testify at the hearing, according to a notice issued on Monday by the U.S. House of Representatives Energy and Commerce Committee.

The House committee, which began investigating drug advertising in January, will spotlight a series of Vytorin commercials that cite "food and family" as two sources of cholesterol.  Merck and Schering-Plough, which sell Vytorin through a joint venture, pulled those ads in January after reporting the drug failed to keep arteries any clearer than an older generic drug, Zocor.  Merck and Schering-Plough concealed that data for nearly two years and while withholding those results, the companies continued spending at least $155 million annually on clever TV ads that heralded Vytorin’s supposed superiority over statins alone.  

The companies have continued their print versions of the ad, said Skip Irvine, spokesman for the Merck and Schering-Plough joint venture, who confirmed the companies were asked to appear before the committee but could not say who would represent them.  Irvine said they would make a statement at the hearing but offered no other details.

Lawmakers will also look at Pfizer's Lipitor television commercials featuring the inventor of the Jarvik artificial heart, Dr. Robert Jarvik.  The Jarvik ad campaign came under Congressional committee scrutiny when examining consumer drug advertising and questions if the ads misrepresented Jarvik and his credentials.  While Jarvik does have a medical degree, he is neither a cardiologist, nor is he licensed to practice medicine.  In one ad, Jarvik is presented as an accomplished rower; that ad used a body double for Jarvik, who does not row.  “The way in which we presented Dr. Jarvik in these ads has, unfortunately, led to misimpressions and distractions from our primary goal of encouraging patient and physician dialogue on the leading cause of death in the world—cardiovascular disease,” Pfizer’s president of worldwide pharmaceutical operations, Ian Read, said. “We regret this.  Going forward, we commit to ensuring there is greater clarity in our advertising regarding the presentation of spokespeople.”  A company spokeswoman, Vanessa Aristide, said Pfizer was working with its ad agency, the Kaplan Thaler Group, on a new campaign.  Pfizer pulled the long-running Lipitor ads in February, but spent over $258 million in advertising since January 2006, mostly on the Jarvik campaign, hoping to protect Lipitor from competition by cheaper generics.

It was not immediately clear which of Johnson & Johnson's Procrit ads would be examined at the committee hearing.  In a statement, Johnson & Johnson's Ortho Biotech unit, which makes Procrit, said the company was cooperating with the committee.

The House panel, which is led by Democrat John Dingell of Michigan, will also examine the effects of consumer drug advertising on prescribing habits and sales, among other issues.