YAZ Commercial Yanked from TV, But Not from YouTube

Some time ago I pointed out that Bayer Healthcare Pharmaceuticals pulled its 60-second "Goodbye to You" ad for birth-control pill Yaz after the FDA "expressed concerns" that the ad went too far in suggesting the drug could help overcome PMS and acne. I criticized the FDA for closing the barn door after the cow have left (see "FDA and YAZ: Is FDA Helping Marketers Work Around Regulations?").

My criticism, which was published way back in the beginning of October, 2008, may have helped goose the FDA to do something it rarely does: require Bayer to run new ads to correct previous Yaz marketing. The new $20 million advertising campaign points out the errors in previous ads and warns that nobody should take Yaz hoping that it will also cure pimples or premenstrual syndrome (see this NY Times story: "A Birth Control Pill That Promised Too Much").

According to the NY Times, "Under a settlement with the states, Bayer agreed last Friday to spend at least $20 million on the campaign and for the next six years to submit all Yaz ads for federal screening before they appear." $20 million over 6 years pales in comparison to a typical DTC campaign and is mere "chump change," said Bruce L. Lambert, a professor of pharmacy administration at the University of Illinois at Chicago.

While I have seen the new ad on TV, I haven't seen it on YouTube.

BTW, the original "Goodbye to You" is still available on YouTube (see below) where it has received nearly 15,000 views since it was uploaded on 21 May 2008 by "desireegrae," who apparently is one of the actresses in the commercial (ie, Desiree Hall, see photo here). Play the video at the end of this post and see if you can spot her in the ad.

OK, so here we have an ad currently running on YouTube that is in violation of FDA regulations. Shouldn't Bayer use its power to have Desiree "pull" this video from YouTube just as it was pulled from TV? I mean, it didn't take me long to discover the ad on Youtube (search for "YAZ Commercial") and who uploaded it (look at the stats and sites that link to the video and you will immediately see desireehall.com, which is obviously connected to "desireegrae.")

Is there any legal obligation for Bayer to do this? Did the FDA mention YouTube when it asked to have the ad pulled? Or is Desiree's reproduction of the ENTIRE ad considered "fair use" under copyright law? Inquiring minds want to know.

P.S. Desiree really got pissed when YouTube commenters were dissing the ads and suggesting that the song implied that women wanted to say "goodbye' to babies:

"PEOPLE," responded Desiree. "Pay attention to the commercial if you are going to critique it so harshly. The good bye to you song is good bye to cramps, fatigue, bloating, which is precisely why the balloons, that float upwards (which signify these horrible monthly problems leaving), say "CRAMPS", "FATIGUE" and "BLOATING", etc. It has nothing to do with good bye to babies. Birth control pills has other benefits than just preventing pregnancy. Educate yourselves."

From the comments I read, it appears that "overstating the drug’s benefits" had the desired effect on many viewers, including Desiree!