13 Pages Posted: 10 Aug 2011
Date Written: August 9, 2011
The commercial speech doctrine has already had a major impact on drug regulation. This article examines the justification in two areas for limiting the information that drug companies provide to consumers or doctors about drugs with a high risk potential. The paper will first discuss the constitutionality of a tailored safety moratorium on television advertisements for drugs with a high risk potential. The article will then examine the constitutionality of imposing limitations on the ability of a drug manufacturer to initiate giving or mailing to doctors reprints of medical journal articles that discuss new but unapproved uses for drugs. The Obama Administration objects only to "promotional" distributions under a narrow test. While the constitutionality of restrictions is a contentious issue, this paper maintains that the safety risks to the public rightly deserve great weight under the commercial speech doctrine.
Suggested Citation: Suggested Citation
Gilhooley, Margaret, Commercial Speech, Drugs, Promotion and a Tailored Television Advertisement Moratorium (August 9, 2011). Health Matrix: Journal of Law-Medicine, Vol. 21, 2011. Available at SSRN: https://ssrn.com/abstract=1907401