Pharmaceuticals Won’t Speak for Themselves
Prescription drugs: They come in little white bottles. They take the shape of tablets, gels, or liquids. And they can’t talk.
That last fact usually goes without saying. No one would expect medications to speak, right? Actually, proposed regulations seem to anticipate just that. If drug companies couldn’t advertise in the first three years after a drug’s approval, doctors and patients wouldn’t find out about them unless they somehow promoted themselves.
It’s hard to imagine a situation in which doctors don’t know about medical advances and patients don’t benefit from the latest drugs. But that’s because drug companies do a fantastic job of getting the word out. Prohibit companies from mentioning new drugs, and fewer people will know about them.
Advertising restrictions would have to be pretty carefully tailored if they were going to survive judicial scrutiny. The government will have to demonstrate both an important state interest in restricting the advertising AND that the restrictions are “no more extensive than is necessary to serve that interest.” Applying this standard in Thompson v. Western States Medical Center (2002), the U.S. Supreme Court struck down a governmental regulation that banned pharmacies from advertising “compounded drugs” that were not required to go through the FDA’s standard approval process.
If the government is concerned about people buying unproven drugs, they have the option of prohibiting people from buying unproven drugs. If they are concerned about companies making false or misleading claims about those drugs, they can prohibit companies from making false or misleading claims. The government cannot, however, decide that companies are not allowed to provide citizens with information about a product that is (or may soon be) on the market.
Comment by Dave Roland — December 9, 2009 @ 4:54 p.m.