Higher First Amendment Hurdles for Public Health Regulation

Boston University School of Law, Boston, USA.
New England Journal of Medicine (Impact Factor: 55.87). 08/2011; 365(7):e13. DOI: 10.1056/NEJMp1107614
Source: PubMed
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    ABSTRACT: In October 2009, the board of directors of the American College of Emergency Physicians (ACEP) approved a major revision to ACEP's "Gifts to Emergency Physicians from Industry" policy. The revised policy is a response to increasing debate and calls for restriction of the long-standing biomedical industry practice of giving promotional gifts to individual physicians. This article outlines the history of professional attention to gift giving and reviews recent contributions to the ongoing debate over its justifiability, including professional association recommendations for limitation or prohibition of the practice. The article concludes with a description of the provisions of the revised ACEP gifts policy and brief reflection on the future of this practice.
    Annals of emergency medicine 08/2011; 59(2):89-97. DOI:10.1016/j.annemergmed.2011.08.001 · 4.68 Impact Factor
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    ABSTRACT: On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act into law.(1) For the first time, Congress had given the Food and Drug Administration (FDA) authority to directly regulate tobacco products, with the aim of improving public health. And indeed, effective tobacco control would be a remarkable public health achievement - and might be possible if the law is allowed to stand. But on November 7, 2011, a federal judge in Washington, D.C., issued a preliminary injunction blocking some of its key provisions as unconstitutional restrictions on commercial speech, and the battle seems likely . . .
    New England Journal of Medicine 12/2011; 365(25):2351-3. DOI:10.1056/NEJMp1113011 · 55.87 Impact Factor
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    ABSTRACT: The First Amendment protects lawful, non-misleading advertising as commercial speech, which constrains Congressional attempts to regulate direct-to-consumer advertising (DTCA) of prescription drugs. But the Constitution does not require the federal government to subsidize advertising through the Tax Code. Congress could revoke the legislative gift of tax deductions for DTCA without running afoul of regulating speech. While DTCA proponents maintain that DTCA increases disease awareness and leads to more doctor-patient conversations, Congress could find that these purported benefits are outweighed by other negative consequences, including excessive prescribing.
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