-Caveat Lector-
In a message dated 9/5/02 4:10:59 PM, [EMAIL PROTECTED] writes:
>For example, drug companies now spend billions of dollars a year on
>Direct-to-Consumer (DTC) prescription drug advertising, with more spent
>to advertise leading drug brands than Pepsi or Budweiser.
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-Caveat Lector-
Advertise This!
Corporations are gaining ground fast in their effort to assume all of
the U.S. constitutional protections afforded human beings.
Some of the last limitations on corporate free speech rights may be
about to fall, thanks to Supreme Court decisions that increasingly
equate commercial advertising with political speech, and a Food and Drug
Administration (FDA) that appears eager to accept Court-imposed
restrictions on its authority.
To see what you can do to help block this corporate empowerment, see:
http://www.essentialaction.org/commercialspeech.
An 1886 Supreme Court decision established that corporations in the
United States are entitled to constitutional protections. Since then,
the Court has progressively extended Bill of Rights protections,
including First Amendment speech rights, and other constitutional
guarantees to corporations. In 1978, the Court established a
constitutional right to "commercial speech" -- speech intended to
promote and advertise products for sale, as opposed to political or
expressive speech.
Since 1978, the courts have steadily expanded commercial speech rights,
taking a potentially dramatic step in a decision issued earlier this year.
In that decision, Thompson v. Western States Medical Center, the Supreme
Court interpreted its commercial speech test, developed in a case called
Central Hudson, to make it very difficult for the government to restrict
commercial speech.
Western States Medical Center involved a provision of a 1997 law that
permits pharmacies to make compounded pharmaceuticals -- drugs
manufactured on the premises, to serve the specific needs of particular
patients. The 1997 law permits compounded drugs to be sold -- even
though they have not passed FDA safety and efficacy tests -- but on
condition that they not be advertised. The basic idea is to seek a
balance: to permit manufacture for specifically prescribed needs, but to
prevent pharmacies from circumventing the FDA's safety rules by
advertising untested compounded drugs to the broad public.
The Supreme Court struck down this provision, holding that it violated
the commercial speech rights of the pharmacies. In conducting the
Central Hudson test, the Court agreed that there is a substantial
governmental interest in protecting public health and preserving the
integrity of the FDA drug approval process, and conceded the advertising
restrictions might directly advance these ends. But it held that the law
failed to satisfy the final prong of the Central Hudson test, "whether
it is not more extensive than necessary to serve that interest."
Justice O'Connor, writing for the majority, posited a series of
alternatives to an ad ban, without citing any evidence, or even
providing compelling arguments, that these alternatives would work as
effectively as an ad ban. But they were enough for the majority to
conclude that the advertising restrictions were more extensive than necessary.
This holding seems to move the Central Hudson test away from
ascertaining whether there is a reasonable fit between the government's
commercial speech regulations and its legitimate goals, and towards a
much higher level of scrutiny. The Court is beginning to break down the
constitutional distinction between political and (nonmisleading)
commercial speech -- even though commercial speech protections
essentially apply uniquely to corporations, which do most commercial advertising.
The Supreme Court justifies this rising level of protection for
commercial speech on the grounds that the government cannot legitimately
deny the public truthful commercial information to prevent the public
from making bad decisions with the information.
But why not?
If the Court is going to justify commercial speech protections based on
the public's right to know, as opposed to the speaker's right to speak,
it makes sense for the government to make determinations about whether
the commercial information actually will educate the public to advance
public policy goals. It is hardly a revelation that advertising contains
promotional elements that may drown out its educational benefits.
The high level of protection afforded to commercial speech by the courts
poses a difficult challenge for regulatory agencies that reasonably seek
to restrict advertising, including and especially the FDA, which has
good public health reasons to restrict advertising and promotional claims.
For example, drug companies now spend billions of dollars a year on
Direct-to-Consumer (DTC) prescription drug advertising, with more spent
to advertise leading drug brands than Pepsi or Budweiser. These ads
encourage consumers to demand, and doctors to prescribe, pharmaceuticals
that people don't need. The ads fail to convey the comparative benefits
of the marketed drugs to alternatives. They don't reveal price
information.
DTC ads should be prohibited. But as long as the Supreme Court holds
that there are constitutional speech protections, they must be highly
regulated. Now, the extent of FDA's authority to regulate DTC ads is
somewhat uncertain.
Or consider tobacco (not currently under the jurisdiction of the FDA, or
any federal health agency). There is an abundance of studies
conclusively showing that advertising increases smoking rates,
especially among youth. Tobacco ads and promotions should be banned.
Commercial speech protections make this impossible. The Court's new
formulation may also make even more modest restrictions on tobacco
promotion very difficult.
There is no question that the Court has made things hard for the FDA,
which must maneuver to give itself the greatest possible latitude to
restrict advertising to protect public health.
Unfortunately, the FDA seems quite happy to forfeit the powers it needs
to do its job. In May, the agency put out a request for comments (with a
comment period open until mid-September) on issues involving First
Amendment protections for commercial speech and the scope of the
agency's authority. It appears the agency is looking for excuses to
throw up its hands -- "Sure, we'd like to do our job, but there's not
much we can do. The Supreme Court says corporations have a
constitutional right to advertise, even if that will harm public health."
The outcome, however, is not a foregone conclusion. Twenty-five years
ago, there were no constitutional protections for commercial speech. The
tide can be turned back, beginning with a public demand that the Food
and Drug Administration -- the leading U.S. public health regulatory
agency -- assert the supremacy of protecting the public health over a
purported constitutional right for corporations to hawk their wares.
Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime
Reporter. Robert Weissman is editor of the Washington, D.C.-based
Multinational Monitor, http://www.multinationalmonitor.org, and
co-director of Essential Action. They are co-authors of Corporate
Predators: The Hunt for MegaProfits and the Attack on Democracy (Monroe,
Maine: Common Courage Press, 1999; http://www.corporatepredators.org).
(c) Russell Mokhiber and Robert Weissman
This article is posted at:
http://lists.essential.org/pipermail/corp-focus/2002/000126.html
_______________________________________________
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==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are unwelcomed. Substance�not soap-boxing�please! These are
sordid matters and 'conspiracy theory'�with its many half-truths, mis-
directions and outright frauds�is used politically by different groups with
major and minor effects spread throughout the spectrum of time and thought.
That being said, CTRLgives no endorsement to the validity of posts, and
always suggests to readers; be wary of what you read. CTRL gives no
credence to Holocaust denial and nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
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