After Caronia: First Amendment Concerns in Off-Label Promotion

Stephanie M. Greene

Boston College - Carroll School of Management

January 7, 2014

51 San Diego Law Review 645-708 (2014)

The government has successfully prosecuted pharmaceutical companies for off-label promotion of drugs, maintaining that such promotion impermissibly undermines the FDA’s pre-market approval process and jeopardizes the public health. In several recent cases, however, pharmaceutical companies have alleged that regulations prohibiting such promotion are unconstitutional because off-label promotion is protected under the First Amendment. Two recent Supreme Court cases contain language that gives broad protection to advertising and marketing in the pharmaceutical field. This paper questions the reach of these cases as applied to the practice of off-label promotion through detailing.

Number of Pages in PDF File: 64

Keywords: pharmaceutical, industry, marketing, authority, drug, ads, caputo, sorrell, western states, central hudson, guidance, regulatory, promotion, label, off-label, FDA, FDCA, pre-market, approval, regulations, First Amendment, Supreme Court

JEL Classification: I18, K10, K20, K23, K32, K40, M3, M30, M31, M37, M39

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Date posted: January 8, 2014 ; Last revised: October 9, 2014

Suggested Citation

Greene, Stephanie M., After Caronia: First Amendment Concerns in Off-Label Promotion (January 7, 2014). 51 San Diego Law Review 645-708 (2014). Available at SSRN: http://ssrn.com/abstract=2375940

Contact Information

Stephanie M. Greene (Contact Author)
Boston College - Carroll School of Management ( email )
140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States
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