Well, we still have some good sense and continued reverence for our Constitution’s nearly absolute protection of free speech and expression. It has been the law for some time that content-based proscription of speech, including “commercial” speech, is presumptively invalid in America. The federal Second Circuit Court of Appeals in New York this week has correctly reaffirmed that principle.
In United States vs. Caronia, the government prosecuted and obtained a conviction of a pharmaceutical salesman for promoting the “off-label” use, that is, a use for which the drug had not been approved by the Food and Drug Administration. Now, it is not illegal, nor should it be, for a medical practitioner to prescribe a drug to treat any medical condition, regardless of whether the FDA has approved such use. The judgment to use a pharmaceutical for whatever a physician deem it appropriate is the purview of the practice of medicine. Off-label use is common and often is cutting-edge advance of the healing arts. Physicians often discuss among themselves their experiences in using drugs in innovative ways, A drug salesman like Alfred Caronia, under the FDA rules, would enjoy no such freedom to inform a physician that others have successfully used his company’s product for treatment the drug is not labeled for. Indeed, Mr. Caronia was convicted a federal crime.
The appeals court reversed the trial judge and vacated the conviction. See the opinion , and an article that summarizes it.
The zealots at the FDA, and in the U. S. Justice Department, seem determined to regulate the pharmaceutical industry out of existence. Fat chance, fortunately, for the simple reason that drug therapy works more often than not. The government does make it more expensive, in the name of safety, of course. Safety, of course, is a laudable goal. It has to be balanced, though, as innovation and progress (a word that has lost its meaning thanks to the “Progressives”) entail risks. But that’s not the point here. It is that freedom of expression is sacrosanct in the United States of America, and that is how it should be. The opinion states what so many Americans seem to miss today “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” Wish they’d stop being so good to me.
Postscript: This case may well not end here. There is enough at stake for some interested to seek Supreme Court review. There may be four justices – the magic number – that would vote to hear it. Stay tuned.