November 27, 2018

Op-ed by Dick O’Brien, EVP–Government Relations, and Alison Pepper, SVP–Government Relations, at 4A’s. Originally published in ADWEEK, November 21, 2018.  

As the dust settles on the 2018 midterm elections, a few things have come into focus. One is that while this was maybe not a fully blue wave (depends on which historical perspective you use as a benchmark), the Democrats harnessed voter anger against the current administration into a solid win by capturing the House of Representatives for the first time in eight years.

At present, the Democrats hold 232 House seats to 200 Republican House seats (there are still three seats up for grabs, but these will likely be settled soon). While Democrats lost some seats on the Senate side, they still hold a strong 45 seats to the 52 Republican-held seats (there are two Senate Independents that typically vote with Democrats, and there is one Senate seat in Mississippi currently in a run-off).

So what does this mean for advertisers? Can we expect to see a divided Congress immediately engage in open hostilities harnessing two years of ramped-up rhetoric on both sides, or are we entering a golden two-year stretch of bipartisanship? The short answer is that we can probably expect to see a little bit of both.

The advertising industry should expect to be in for a fight when it comes to privacy and drug pricing transparency.

A few warning arrows have already been shot. Rep. Jerrold Nadler, D-N.Y., has already promised his first act as chairman of the House Judiciary Committee will be to subpoena acting attorney general Matthew Whitaker to question him about his hostility toward the Russia investigation. But there are also signs that a Democratic House is willing to work across the aisle in the spirit of “bipartisanship and common ground,” according to Rep. Nancy Pelosi, D-Calif., who is likely to regain her position as speaker of the House.

For the advertising industry, the two issues of importance most likely to immediately fall under this new gossamer of bipartisanship will be privacy and prescription drug pricing transparency. Both issues have obvious bipartisan appeal: They both affect almost all Americans, have been the subject of much proposed Republican and Democratic legislation over the years and have broad populist appeal.

The privacy storm clouds have been building for years, and with the passage of the European Union’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA), the time for fence-sitting has likely drawn to a close. The House and Senate hearings we saw this fall in the wake of the Cambridge Analytica scandal focused the attention of existing privacy advocates on the Hill while introducing the issue to a new crop of legislators eager to make their mark in the privacy debates. So what can the advertising industry do in the interim to prepare themselves for the storms ahead?

For starters, it never hurts to get your own house in order. Many companies subject to GDPR have already undertaken the task of internal data-flow mapping, creating a better understanding of where their data is coming from, where it is residing and with whom it is being shared. For companies not subject to GDPR, data-flow mapping is still a useful exercise to get a better understanding of where any gaps might reside. Many of the high-profile privacy exposés and regulatory enforcement actions we’ve seen in the past few years could have been prevented with a bit more proactive investigation into existing internal gaps.

If your company isn’t already actively participating in an existing industry self-regulatory program, it’s time to investigate how to get involved. Much of the good work done over the past 10 years in establishing strong industry self-regulatory standards around online data collection has been done by groups already.

These types of groups have been working to educate legislators and regulators for years on not only the consumer benefits of online advertising but also on the good work the industry has done and continues to do in ensuring consumer privacy and choice online. The groundwork laid in keeping legislators and regulators informed on the industry’s progress in protecting consumer privacy online will be invaluable in the years ahead.

Of these two issues with bipartisan appeal, drug pricing transparency would seem to have the added support of the administration’s backing. President Trump and his health and human services secretary Alex Azar are pushing a rule-making proposal to require price disclosures in many prescription drug advertisements. Depending on how that develops, it’s possible we would see the House and Senate work together to codify aspects of the rule-making into law, or we could see legislation introduced to fill any gaps in the rule-making.

As drug pricing transparency is a far more focused issue than the amorphous privacy, it’s possible that we would see lawmakers across the aisle zero-in on this issue over privacy in the short-term.

If, how and when bipartisanship happens in Congress remains an open question. We’ve certainly seen a divided Congress in the past promise to work together in January, only to have that promise dissipate in the cold light of February. But should the promise hold this time, the advertising industry should expect to be in for a fight when it comes to privacy and drug pricing transparency.

Either way, we’ll soon see which type of bipartisan honeymoon we get: the grand tour of Europe or a quick weekend in Niagara Falls.

 

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