43 Pages Posted: 27 Feb 2012
Date Written: February 27, 2012
The First Amendment protects lawful, non-misleading advertising as commercial speech, which constrains Congressional attempts to regulate direct-to-consumer advertising (DTCA) of prescription drugs. But the Constitution does not require the federal government to subsidize advertising through the Tax Code. Congress could revoke the legislative gift of tax deductions for DTCA without running afoul of regulating speech. While DTCA proponents maintain that DTCA increases disease awareness and leads to more doctor-patient conversations, Congress could find that these purported benefits are outweighed by other negative consequences, including excessive prescribing.
Keywords: First Amendment, Commercial Speech, Direct to Consumer Advertising, DTCA, Tax Law, Excessive Prescribing
JEL Classification: K19, K20, K23, K32, K34, K39
Suggested Citation: Suggested Citation
Speiser, Shoshana and Outterson, Kevin, Deductions for Drug Ads? The Constitution Does Not Require Congress to Subsidize Direct-to-Consumer Prescription Drug Advertisements (February 27, 2012). Santa Clara Law Review, Vol. 52, p. 453, 2012; Boston Univ. School of Law, Public Law Research Paper No. 12-11. Available at SSRN: https://ssrn.com/abstract=2011879