Friday, May 27, 2011
Lars Noah, University of Florida College of Law, has published Truth or Consequences?: Commercial Free Speech vs. Public Health Promotion (at the FDA), in volume 21 of Health Matrix (2011). Here is the abstract.
Fundamental tensions obviously exist between constitutional protections of commercial speech and efforts to safeguard the public's health. The First Amendment values autonomy, while public health promotion often reflects paternalistic impulses, not trusting citizens to make sensible lifestyle choices. In other domains where constitutional rights may conflict with public health efforts, the Supreme Court has shown a degree of flexibility. In commercial speech cases, however, it has become far less willing to find a middle ground; the Court's increasingly stringent application of Central Hudson's nexus prongs has effectively narrowed the range of substantial government interests that ultimately can pass muster. This symposium contribution focuses on efforts by the U.S. Food and Drug Administration to restrict the flow of information about medical technologies to physicians and patients. As it happens, the Supreme Court's first and last words on commercial speech protections have involved advertising by professionals who dispense prescription drugs, but the pharmacy compounding case Thompson v. Western States Medical Center, 535 U.S. 357 (2002), has received scant attention from commentators. Only after cutting through the majority's simplistic description of (or perhaps failure to comprehend) the FDA's complex regulatory regime can one appreciate the potentially far-reaching consequences of that decision, especially the Court's sub silentio application of the unconstitutional conditions doctrine in an intermediate scrutiny case. The robust version of commercial free speech doctrine that seems to prevail today could profoundly impinge upon the government's preferred methods for promoting the public's health. Insofar as it has gone beyond simply guarding against the dissemination of false or misleading information and seeks to promote broader public health goals (such as dampening excess demand for potentially hazardous products), the FDA must confront the Court's increasingly clear message that paternalistic speech regulation invariably offends the Constitution.
Download the article from SSRN at the link.