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Tip of the Iceberg II: How the Intended-Uses Principle Produces Medical Knowledge and Protects Liberty

35 Pages Posted: 27 Jun 2017 Last revised: 7 Nov 2017

Christopher T. Robertson

University of Arizona - James E. Rogers College of Law; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

Victor Laurion

University of Arizona - College of Medicine

Date Written: November 3, 2017

Abstract

In recent years, the Food and Drug Administration’s pre-market approval process has come under increasing scrutiny as an infringement on liberty and a regulation of speech. In the first part of this symposium contribution, we offer a case study of Seroquel XR, showing how the FDA’s premarket approval process – and the restrictions on “off-label” promotion in particular – caused the drug company to produce and disseminate knowledge about safety and efficacy for new uses. The law successfully resolved the collective action problem of producing knowledge, even while the law protected the liberty of individual doctors and patients to use the product in ways that the FDA had not considered.

In the second part of the paper, we show a range of other domains, in which Congress similarly uses the actor’s intent, shown by the actor’s own speech, to narrowly define proscribed conduct. By tailoring the law in this way, Congress achieves policy goals while minimizing the infringement of liberty. This broad review helps advance our understanding of both food and drug law as well as the First Amendment doctrine. The law’s use of speech as evidence of intent can produce knowledge while protecting liberty.

Keywords: First Amendment, FDA, pre-market approval, drugmakers, off-label, regulation, commercial speech, regulatory regimes

Suggested Citation

Robertson, Christopher T. and Laurion, Victor, Tip of the Iceberg II: How the Intended-Uses Principle Produces Medical Knowledge and Protects Liberty (November 3, 2017). 11 NYU Journal of Law & Liberty 426, 2017, Forthcoming; Arizona Legal Studies Discussion Paper No. 17-12. Available at SSRN: https://ssrn.com/abstract=2992668

Christopher Robertson (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

HOME PAGE: http://www.law.arizona.edu/faculty/getprofile.cfm?facultyid=714

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics ( email )

23 Everett Street
Cambridge, MA 02155
United States

Victor Laurion

University of Arizona - College of Medicine ( email )

Department of History
Tucson, AZ 85721
United States

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