The Difficult Case of Direct-to-Consumer Advertising

47 Pages Posted: 13 Sep 2007

See all articles by David Vladeck

David Vladeck

Georgetown University Law Center

Abstract

This article will appear in a symposium to pay tribute to Professor Steven H. Shiffrin, one of the leading First Amendment theorists of our time. The author was asked to focus on Professor Shiffrin's contribution to the development of the commercial speech doctrine. To reflect on the wisdom of Professor Shiffrin's refusal to rely on general First Amendment theories, the article focuses on the difficult First Amendment problem of regulating direct-to-consumer (DTC) advertising of prescription drugs. In his famous dissent in Virginia Pharmacy Board, then-Justice Rehnquist forecast that, as a consequence of the Court's ruling, drug companies would soon advertise directly to consumers on television and other media. Justice Rehnquist argued that "there are sufficient dangers attending" the use of drugs "that they simply may not be promoted in the same manner as hair creams, deodorants, and toothpaste."

Today drugs are promoted in much the same way as other products. Drug companies devote forty percent of their advertising expenditures - over $4 billion per year - to DTC ads. The average American views as many as 16 hours of prescription drug ads per year, far exceeding the average time spent with a primary care physician. The question is whether proposals before Congress to limit or ban DTC advertising would pass constitutional muster. The article canvasses the arguments in some detail and concludes that legislation restricting DTC advertising to enable the FDA to assess the risks of a drug might withstand constitutional attack, but that an all-out ban on DTC advertising would not likely be sustained. The point of this discussion is to illustrate the complexity of commercial speech questions and to demonstrate that Professor Shiffrin was correct when he observed that "the commercial speech problem is in fact many problems," and that "the small questions [it poses] will not go away."

Suggested Citation

Vladeck, David, The Difficult Case of Direct-to-Consumer Advertising. Loyola of Los Angeles Law Review, Vol. 41, 2008, Georgetown University O'Neill Institute for National & Global Health Law Scholarship Research Paper No. 3, Available at SSRN: https://ssrn.com/abstract=1014134

David Vladeck (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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