News
One television commercial shows attractive young women pulling up their shirts. “I feel better” is written on their bellies. Another commercial shows a glowing butterfly entering a bedroom and magically granting peaceful sleep to the person laying in bed.
These commercials for prescription drugs are common. They’re known as “DTC ads.” DTC means the advertisement is direct-to-consumer, although it’s up to your doctor to decide whether or not a drug is good for you.
Some lawmakers recently tried to ban DTC ads with legislation called S.1082 (the Food and Drug Administration Revitalization Act). According to the New England Journal of Medicine, there is popular support for a ban: in a telephone survey conducted in March 2007 by Consumer Reports, 59 percent of respondents “strongly agreed” that the FDA should ban advertisements for drugs that had safety problems.
The ban was removed from the act, but many legal authorities said such a ban would have been unconstitutional.
The reason is something called commercial free speech.
Sen. Tom Coburn, R-Okla, described drug company advertisements as free speech guaranteed by the U.S. Constitution.
“I’m glad this bill preserves the right to commercial free speech, as intended by the Constitution, in direct-to-consumer (DTC) advertising,” he said.
But the Founding Fathers didn’t have businesses in mind when they included freedom of speech in the First Amendment, according to Dr. Martin H. Belsky, professor of law and former dean at University of Tulsa College of Law.
“Clearly, commercial free speech is a new doctrine that was established in 1970s in a case called Virginia Board of Pharmacy (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council),” Belsky said. “It did not exist at the time of the framers. It is something that has been created by the courts in the last 30 years. Only political free speech existed in the First Amendment at the time of the framers. I find it particularly curious that Sen. Coburn, who keeps talking about strict construction, is using a more recent case to justify restrictions.
“But, as Yogi Berra, that famous legal philosopher, said: ‘Where you stand depends on where you sit.’”
Belsky said the Constitution is often considered a “living document” that changes as society changes.
“When we were a very small agrarian agricultural society in the 18th century, there wasn’t much commercial speech and therefore there wasn’t much need for protection of commercial speech,” he said. “But now we have a fairly sophisticated society and a fairly sophisticated commercial industry, so the idea is to promote competition.”
Belsky also said one reason the government is intervening in communications between drug companies and the public is that doctors are seen as being inadequate at standing between the consumer and the drug companies.
That idea does not sit well with Dr. Timothy Holder at Maternal and Family Practice Associates Inc.
“That bothers me,” he said. “I think ultimately it could endanger the doctor-patient relationship that is essential to our system of medicine. And further government intervention might be harmful in the long run.”
Holder is also concerned about increasing the fines the FDA can impose on drug companies that violate federal laws. That might squelch research and development, he said.
“One thing drug companies have done is bring out many new drugs that expand what we as physicians can do for our patients.”
However, Holder said he sees benefit in requiring drug companies to publicize all clinical drug trials, and in allowing the FDA to mandate better drug labeling.
“In light of recent drug recalls, I think any increased public scrutiny would be a good idea,” Holder said. “Any (more informative) labeling change can only increase the public safety.”
Dr. Gloria Grimm, medical director for the Cherokee Nation, said there was a time when the public had a right to information about drugs being sold to them. That has changed.
“If a drug company hires me to be a researcher, and I find out that their new drug isn’t as efficient, I can’t disclose that information,” she said. “They then own the information. Thirty years ago most clinical drug trials were sponsored by the National Institutes of Health. That has completely shifted to where most are funded by pharmaceutical companies. When the clinical trials were federally funded, the information was in the public domain.”
These commercials for prescription drugs are common. They’re known as “DTC ads.” DTC means the advertisement is direct-to-consumer, although it’s up to your doctor to decide whether or not a drug is good for you.
Some lawmakers recently tried to ban DTC ads with legislation called S.1082 (the Food and Drug Administration Revitalization Act). According to the New England Journal of Medicine, there is popular support for a ban: in a telephone survey conducted in March 2007 by Consumer Reports, 59 percent of respondents “strongly agreed” that the FDA should ban advertisements for drugs that had safety problems.
The ban was removed from the act, but many legal authorities said such a ban would have been unconstitutional.
The reason is something called commercial free speech.
Sen. Tom Coburn, R-Okla, described drug company advertisements as free speech guaranteed by the U.S. Constitution.
“I’m glad this bill preserves the right to commercial free speech, as intended by the Constitution, in direct-to-consumer (DTC) advertising,” he said.
But the Founding Fathers didn’t have businesses in mind when they included freedom of speech in the First Amendment, according to Dr. Martin H. Belsky, professor of law and former dean at University of Tulsa College of Law.
“Clearly, commercial free speech is a new doctrine that was established in 1970s in a case called Virginia Board of Pharmacy (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council),” Belsky said. “It did not exist at the time of the framers. It is something that has been created by the courts in the last 30 years. Only political free speech existed in the First Amendment at the time of the framers. I find it particularly curious that Sen. Coburn, who keeps talking about strict construction, is using a more recent case to justify restrictions.
“But, as Yogi Berra, that famous legal philosopher, said: ‘Where you stand depends on where you sit.’”
Belsky said the Constitution is often considered a “living document” that changes as society changes.
“When we were a very small agrarian agricultural society in the 18th century, there wasn’t much commercial speech and therefore there wasn’t much need for protection of commercial speech,” he said. “But now we have a fairly sophisticated society and a fairly sophisticated commercial industry, so the idea is to promote competition.”
Belsky also said one reason the government is intervening in communications between drug companies and the public is that doctors are seen as being inadequate at standing between the consumer and the drug companies.
That idea does not sit well with Dr. Timothy Holder at Maternal and Family Practice Associates Inc.
“That bothers me,” he said. “I think ultimately it could endanger the doctor-patient relationship that is essential to our system of medicine. And further government intervention might be harmful in the long run.”
Holder is also concerned about increasing the fines the FDA can impose on drug companies that violate federal laws. That might squelch research and development, he said.
“One thing drug companies have done is bring out many new drugs that expand what we as physicians can do for our patients.”
However, Holder said he sees benefit in requiring drug companies to publicize all clinical drug trials, and in allowing the FDA to mandate better drug labeling.
“In light of recent drug recalls, I think any increased public scrutiny would be a good idea,” Holder said. “Any (more informative) labeling change can only increase the public safety.”
Dr. Gloria Grimm, medical director for the Cherokee Nation, said there was a time when the public had a right to information about drugs being sold to them. That has changed.
“If a drug company hires me to be a researcher, and I find out that their new drug isn’t as efficient, I can’t disclose that information,” she said. “They then own the information. Thirty years ago most clinical drug trials were sponsored by the National Institutes of Health. That has completely shifted to where most are funded by pharmaceutical companies. When the clinical trials were federally funded, the information was in the public domain.”
