Commercial Speech v. Free Speech

The Bulldog Reporter wrote an article about an interesting and complex issue Congress is trying to tackle, pharmaceutical direct to consumer marketing. The Democrats want to restrict the pharmas from advertising direct to consumers, like TV or magazine ads. This issue gets to the heart of the first amendment and the right to free speech. On one hand, the government has the right to protect its citizens from misleading speech that could lead to a harm. On the other hand, these pharmaceutical companies have a right to express their beliefs that their product is the superior one in the market through DTC marketing. Although the United States is one of two countries in the world (New Zealand is the other) that allow DTC marketing, I don't think that this legislation will get passed and if it does it will be vetoed or eventually struck down as unconstitutional.

If I remember my Communications Law class from last summer correctly, Central Hudson v. Public Service Commission set forth a four-prong test for regulation of commercial speech. Let's see if this proposed regulation would pass the Central Hudson test:

1. Are the ads truthful and for a lawful product?
Well, there is already regulation against truthful ads and the products are legal, so this one doesn't really matter.

2. Does the government have substantial interest to be achieved by the restriction?
Yes, but. The government wants to protect consumers from being tricked into having diseases that require medication. Think restless leg syndrome, what a joke. However, the ads explicitly tell you talk to a physician not to go out and buy the drug. So, I'd say that the regulation passes this prong.

3. Does the regulation effectively and directly advance the issue?
Yes. A ban on DTC marketing would make a physician the only people who would recommend a medication, not television ads.

4. Could a lessened restriction serve the same interest?
No. Here's where it gets tricky. There are already regulations on what can and cannot be said in pharmaceutical ads that serve this interest. I believe that a ban on all DTC marketing would not serve the interest anymore than the regulations that already in place.

I believe that the courts have been fairly direct with this issue and any attempt by Congress to ban DTC marketing would get thrown out pretty quick.

As PR professionals, we must have an understanding of the laws in place so that we do not put ourselves or our employer in a position of liability. Furthermore, with a better understanding of law and specifically commercial speech, you can know the loopholes so you can provide your client with the best campaign the law allows.