Free Speech for Big Pharma

The U.S. Supreme Court has held on several occasions, most recently in the June 2011 case Sorrell v. IMS Health, that truthful speech used in pharmaceutical marketing is entitled to the same level of First Amendment protection as other forms of commercial speech. And the U.S. Court of Appeals for the Seventh Circuit decision in United States v. Caputo (2008) concluded that the Federal Drug Administration’s (FDA) off-label speech restrictions are likely to be “unconstitutional in at least some applications.” There is good reason, therefore, to believe that the Second Circuit or the D.C. District Court will strike down at least part of the off-label promotion ban. The government should be able to regulate commercial speech to ensure it is truthful and not fraudulent, but the First Amendment’s guarantees would be weak, indeed, if they did not protect the right to utter, hear, and promulgate truthful, non-misleading information.

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