16 Pages Posted: 25 Apr 2011 Last revised: 28 Jul 2013
Date Written: April 21, 2011
Historically, government has been given more leeway when invoking its interests in safeguarding the public health than when asserting other state interests. For example, when considering a constitutional challenge to mandatory small pox immunization in Jacobson v. Massachusetts, the Supreme Court employed its highly deferential, rational basis review rather than the stricter level of scrutiny that it normally employs when individuals assert interests in bodily integrity.
In recent years, however, it appears that a trend is developing toward applying the same level of constitutional scrutiny to health regulation. In Abigail Alliance, a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit overrode FDA regulations to recognize a short-lived constitutional right of access for patients to experimental chemotherapy. In Western States, the U.S. Supreme Court struck down advertising restrictions imposed on pharmacies by Congress.
To some extent, it makes sense to treat health regulation more like other kinds of regulation. Government may be too quick to sacrifice individual liberty when threats to health loom. However, courts may be overcompensating in their efforts to right the balance between individual liberties and the public’s interest in good health.
In this paper, I will explore the clash between the interest in freedom of speech and the interest in public health in the context of the commercial speech doctrine and suggest how the balance should be drawn between two very important societal interests. In particular, I will argue that there are two important doctrines for retaining some special treatment of public health concerns. First, rather than following the Jacobson principle of deference to legislative judgment, courts should follow the principle of deference to the judgment of public health officials that was enunciated in School Board of Nassau County v. Arline. Second, courts should invoke the principle of trust and its concomitant duty of loyalty to adequately recognize the interests of individuals in not having their relationships with physicians, pharmacists and other health care providers exploited for the providers’ personal gain.
Keywords: FDA, public health, commercial speech, first amendment, data mining, pharmaceutical marketing
JEL Classification: I18, K23
Suggested Citation: Suggested Citation
Orentlicher, David, The Commercial Speech Doctrine in Health Regulation: The Clash between the Public Interest in a Robust First Amendment and the Public Interest in Effective Protection from Harm (April 21, 2011). American Journal of Law and Medicine, Vol. 37, pp. 299-314, 2011; U Iowa Legal Studies Research Paper No. 11-25. Available at SSRN: https://ssrn.com/abstract=1817103