First Amendment Overprotection of ‘Alternative Facts’: The Case of Cognitive Biases With Pharmaceutical Marketing

50 Pages Posted: 30 Mar 2018 Last revised: 18 Apr 2018

Cynthia M. Ho

Loyola University of Chicago School of Law

Date Written: March 22, 2018

Abstract

This article argues that pharmaceutical marketing to doctors should be more critically considered as “alternative” facts and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court’s 2011 decision in Sorrell. This article adds a significant critique based on the existence and impact of cognitive bias literature that has thus far not been recognized in this area. If courts fully embrace this understanding, they should recognize that the government, through the Food and Drug Administration, should have a right to limit statements that may encourage doctors to prescribe unapproved use of drugs with potentially fatal consequences.

This article reveals that this recent expansion of First Amendment jurisprudence is based on key cognitive biases and assumptions. First, courts and even some doctors themselves improperly assume that doctors are adequately sophisticated, such that they are protected from self-interested marketing, which this article demonstrates as inconsistent with reality. Second, current case law assumes that the availability of more information necessarily promotes better decisions so long as it is not patently false, a proposition that this article shows is especially unfounded in the unique market of prescription drugs. Importantly, such assumptions can have critical health consequences since they promote uses of drugs for which there is often inadequate scientific basis and serious health consequences.

Finally, this article builds upon the revealed cognitive biases to suggest empirically informed changes to cabin the expansion of First Amendment protection of pharmaceutical marketing as well as broader structural reform. This article makes specific proposals to treat potentially misleading information differently than entirely truthful speech, thus giving states greater discretion to regulate potentially misleading information. In addition, the burden of proof in such cases should also be reversed, so that courts will no longer consider disclaimers as a true alternative to speech restriction without proof from companies that they will actually promote more informed decisions. The article also suggests structural changes to medical education, drug development and marketing informed by the cognitive biases revealed here.

Keywords: Commercial Speech, Sorrell, Caronia, FDA, Off-Label, Marketing, Pharmaceutical, Cognitive Bias, Schema

JEL Classification: I1, I10, I18, I19, H51, K40, K41, K49, L52, L59, L88, L89, L69, L65, L12, L19

Suggested Citation

Ho, Cynthia M., First Amendment Overprotection of ‘Alternative Facts’: The Case of Cognitive Biases With Pharmaceutical Marketing (March 22, 2018). Indiana Law Journal, Vol. 94, No. ?, 2019. Available at SSRN: https://ssrn.com/abstract=3152645 or http://dx.doi.org/10.2139/ssrn.3152645

Cynthia M. Ho (Contact Author)

Loyola University of Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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