Legal battles over penis pills

In late April, a Virginia congressman proposed the Families for ED Advertising Decency Act, which would restrict TV ads for erectile dysfunction drugs to late-night timeslots. LA Times columnist Dan Neil writes:

I realize that all the world's men can be roughly divided into two camps: those who have suffered from ED and those who think it's hilarious. Even though I am a raging liberal atheist appalled by Americans' obsessive-phobic complex over sexual matters, I am also the father of two little girls. I would really prefer not to have to explain the erection-lasting-more-than-four-hours thing to them while we're watching NASCAR. So, yes, while it's a slightly ridiculous issue, I sort of admire Moran's willingness to be the stooge for it.

As a childless raging libertarian atheist, these ads don't bug me any more than ads for beer, tires, credit reports, fast food, etc, but I can see his point. Neil notes an odd feature of the bill: it would cover ads for Viagra, Cialis and Levitra (which actually work), but not ads for "male performance enhancement" pills like Enzyte and ExtenZe (which don't work). Why not?

For that, you can thank the 1994 Dietary Supplement Health and Education Act, which severely limited the Food and Drug Administration's authority to crack down on unsubstantiated dietary claims. Supplements -- everything from nutraceutical energy drinks to the male-enhancement potions -- fall under the authority of the Federal Trade Commission.

The feds did go after Enzyte for fraudulent business practices, and company founder Steven Warshak was sentenced to 25 years in prison last year. Now civil liberties groups are challenging the Justice Department's use of warrantless wiretapping in investigating Enzyte.

According to [The Electronic Frontier Foundation], the act under which the emails were obtained “is only supposed to be used for obtaining emails already in storage with a provider.” Instead, the Justice Department ordered suspect Steven Warshak’s email provider to prospectively “preserve” copies of his future emails, which would otherwise have been deleted as they were downloaded.

The government then subpoenaed the provider for copies of the emails, thereby obtaining 27,740 of Warshak’s private communications without a warrant and without him being aware of the arrangment.

The amicus brief filed by EFF argues that “Warshak had a reasonable expectation of privacy in the contents of his email even when those messages were in the possession of his email provider NuVox, and that the Fourth Amendment required the government to obtain a probable cause warrant before seizing those emails. . . . The government plainly exceeded its statutory authority, and did so unreasonably, in violation of the statute’s plain language and the Justice Department’s own policies.”

Warrantless wiretapping was billed as a tool for fighting terrorism, now it's being used against penis pill con artists. The EFF is absolutely right. The Fourth Amendment was a really good amendment, and it's time to repeal its repeal.

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