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).