Liability for Direct Advertising of Drugs to Consumers: An Idea Whose Time Has Not Come

Abstract

Hofstra Law Review has instituted a new "Ideas" section. Leading scholars are encouraged to write short essays from six to ten pages of length. The goal is to allow for publication of ideas that scholars and members of the judiciary wish to air but do not want to develop into full blown heavily footnoted articles. In this inaugural section Dean Twerski has written an article suggesting the reason why courts have continued to immunize drug manufacturers from liability if they give adequate warning of drug related risks to the physician. This immunity continues in force even though manufacturers have advertised their drugs directly to public. The article argues that courts have been reluctant overrule the "learned intermediary" doctrine because they realize that though it is possible to adequately convey to consumers the benefits of a drug it is very difficult to effectively communicate the risks associated with taking the drug. If drug advertising is a social good because it benefits public health by educating consumers about worthwhile drugs we shall have to live with the downside that warnings to consumers will be less than optimum.

Keywords: Learned Intermediary, Direct Advertising of Drugs, Benefits of Drug Advertisements