The Indirect Consequences of Expanded Off-Label Promotion

46 Pages Posted: 8 Sep 2017 Last revised: 2 Feb 2018

See all articles by Patricia J. Zettler

Patricia J. Zettler

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: August 1, 2017

Abstract

The U.S. Food and Drug Administration’s (FDA) policies have been a battleground for litigation about First Amendment protections for commercial speech. In the last five years, the FDA’s position that “off-label” promotion of approved prescription drugs — when a manufacturer promotes a drug for a use for which the FDA has not approved it — leads to violations of the Federal Food, Drug, and Cosmetic Act has been subject to successful legal challenges. Although the merits of these off-label promotion decisions are well traversed in the literature, this Article explores the potential indirect consequences of recently-recognized protections for off-label promotion. This Article demonstrates that — as suggested in the dissenting opinion in United States v. Caronia, a high-profile 2012 case regarding off-label promotion — protections for off-label promotion might affect the FDA’s decision-making in areas other than drug promotion, and analyzes precisely what those effects could be in light of the FDA’s current statutory authority.

Keywords: FDA, Food and Drug Law, Administrative Law, First Amendment, Commercial Speech, Off-Label Promotion

JEL Classification: I18, K23, K39

Suggested Citation

Zettler, Patricia J., The Indirect Consequences of Expanded Off-Label Promotion (August 1, 2017). Ohio State Law Journal, vol 78, 2017; Georgia State University College of Law, Legal Studies Research Paper No. 2017-13. Available at SSRN: https://ssrn.com/abstract=3029621

Patricia J. Zettler (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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