Cigarettes and DTC?
“Commercial speech is fully protected by our constitution.”
What do cigarette package warnings have to do with DTC advertising? On the face of it, not much. Cigarettes are bad for you and prescription drugs help make you better. The Federal courts just ruled on a cigarette case and it has a lot in common with DTC. The government wanted cigarette packs to have very explicit and scary words and visuals on the packs. The Federal District Court struck down a law that required these warnings based on the first amendment.
They said any infringement on commercial speech must prove that the limitation will really advance the public health goal. They saw no compelling evidence that these new required warnings would do so. Many consumer advocates want more rules to limit DTC for prescription drugs. Unfortunately for them, talking about lawful products through advertising is protected under the first amendment. Government cannot ban speech without a compelling reason and only after all other alternatives are tried.
As much as consumer watchdogs want to tell the public what ads are acceptable and for what products, the barrier to that is free speech. Drug ads are regulated by FDA for truthful statements and fair balance. Any attempt to regulate them out of existence through an outright ban or overly burdensome FDA
requirements would face a constitutional challenge. The Supreme Court takes free speech very seriously whether it is political speech or commercial speech. Just because someone finds an ad distasteful and a barrier to some public policy goal, does not allow them to ban it. Commercial free speech is fully protected by our constitution.
The cigarette case shows how far our courts will go to protect it even if most of us do not like the product advertised. Forcing manufacturers of cigarettes to put warnings beyond what is already there is seen as infringing on their commercial speech. I do not know if a higher court will uphold the ruling but it does show how much speech is protected. This ruling may be controversial but is good news for DTC.
Bans on speech should be reserved for true public health emergencies, not because some interest group finds DTC ads increase sales of branded products or expands the use of a category of drug. Hopefully the calls for bans on DTC will be influenced by court rulings on speech. FDA needs to monitor and regulate DTC ads but they too need to be aware that their rules must not go too far in holding back free speech.
As a non-smoker I do not mind more explicit warnings on cigarette packs. As a free market supporter, however, I know the Court’s ruling is protecting commercial speech and therefore rescinds those warnings. Sometimes we must accept the objectionable to protect all of our rights to commercial speech. In this case cigarettes and DTC have much in common.
Bob Ehrlich, Chairman
DTC Perspectives, Inc.