Pharmaceutical Promotion and First Amendment Rights
Letter to the Editor

Resident Fellow
Scott Gottlieb, M.D.
Dr. Gottlieb and Mr. Troy comment on the constitutionality of off-label pharmaceutical promotion in response to the Journal's April 17 article Pharmaceutical Promotion to Physicians and First Amendment Rights.

Kesselheim and Avorn (April 17 issue)[1] dramatically understate the robust, sound constitutional protection the U.S. Supreme Court affords truthful, nonmisleading commercial communication such as that embodied in reprints of scientific articles discussing off-label uses.[2][3][4] Their suggestion that physicians need protection from the very journal articles they receive through subscription or library services is utterly at odds with the Court's forceful rejection of government paternalism.

Appropriate off-label use that informs proper patient care is fostered by more, not less, communication of truthful, nonmisleading information. It is unclear how articles published in the Journal lose their educational benefit and public health value (never mind constitutional protection) when manufacturers buy them as reprints from the Journal and distribute them to information-seeking physicians.

Scott Gottlieb, M.D., is a resident fellow at AEI.

Notes

1. Kesselheim AS, Avorn J. Pharmaceutical promotion to physicians and First Amendment rights. N Engl J Med 2008;358:1727-1732.
2. Cincinnati v. Discovery Network, 507 U.S. 410 (1993).
3. Edenfield v. Fane, 507 U.S. 761 (1993).
4. Ibanez v. Florida Dept. of Business & Professional Regulation, 512 U.S. 136 (1994).

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About the Author

 

Scott
Gottlieb
  • Scott Gottlieb, M.D., a practicing physician, has served in various capacities at the Food and Drug Administration, including senior adviser for medical technology; director of medical policy development; and, most recently, deputy commissioner for medical and scientific affairs. Dr. Gottlieb has also served as a senior policy adviser at the Centers for Medicare & Medicaid Services. 

    Click here to read Scott’s Medical Innovation blog.


    Follow Scott Gottlieb on Twitter.

  • Phone: 202.862.5885
    Email: scott.gottlieb@aei.org
  • Assistant Info

    Name: Kelly Funderburk
    Phone: 202.862.5920
    Email: Kelly.Funderburk@AEI.org

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