Debate: Off-Label Drug Promotion and the First Amendment

29 Pages Posted: 25 Jun 2014

See all articles by Stephanie M. Greene

Stephanie M. Greene

Boston College - Carroll School of Management

Lars Noah

University of Florida Levin College of Law

Date Written: June 24, 2014

Abstract

Off-label promotion — pharmaceutical manufacturers’ marketing of FDA-approved drugs for unapproved uses — is considered a First Amendment right by some, a threat to the safety and effectiveness of pharmaceutical drugs by others. Although off-label prescription is legal and often beneficial, the Federal Food, Drug, and Cosmetic Act (FDCA) and corresponding FDA regulations effectively prohibit off-label promotion. The FDA can look to statements by pharmaceutical representatives as evidence of a drug’s intended use, thereby placing manufacturers that promote off-label in a Catch-22: the drug will be subject to the FDCA’s misbranding provisions if manufacturers add labeling instructions for that intend- ed use, but also if they fail to add those instructions. To legally promote a new intended use, pharmaceutical companies must satisfy the FDA’s rigorous approval process. In United States v. Caronia, the Second Circuit Court of Appeals ruled that the FDCA could not be interpreted to prohibit truthful, off-label promotion.

Professors Stephanie Greene and Lars Noah debate the constitutionality of the FDA’s prohibitions in light of Caronia and the Supreme Court’s increased deference to commercial speakers’ First Amendment rights. Professor Greene argues that Caronia was wrongly decided because the court failed to scrutinize the nature of off-label promotion. Greene contends that the truthfulness of off- label information is "speculative, unknown, or inaccessible," and that the FDA’s restrictions on off-label promotion serve two substantial interests: ensuring that both doctors and consumers receive accurate, scientifically based information, and assuring that drugs have been proven safe and effective. Professor Noah questions Greene’s assumption that promotion of off-label drug uses is pre- sumptively untruthful or misleading. He argues that Supreme Court precedent cuts against Greene’s position, and that the FDA’s restrictions on off-label promotion are unconstitutionally broad because they prevent drug manufacturers from disseminating even truthful and nonmisleading information, and because the FDA could accomplish its goals through less-speech-restrictive means.

Keywords: Supreme Court, false, misleading, Central Hudson, marketing, commercial speech, Greene, Noah, off-label, pharmaceutical, drug, First Amendment, Caronia, FDA, FDCA

Suggested Citation

Greene, Stephanie M. and Noah, Lars, Debate: Off-Label Drug Promotion and the First Amendment (June 24, 2014). 62 University of Pennsylvania Law Review 239-267 (2014), Available at SSRN: https://ssrn.com/abstract=2458391

Stephanie M. Greene (Contact Author)

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

Lars Noah

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0923 (Phone)
352-392-3005 (Fax)

HOME PAGE: http://www.law.ufl.edu/faculty/lars-noah

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