Law, Medicine and Health Care, Co-Sponsored by Section on Constitutional Law*

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One or more presenters were selected from a call for papers.

In the past few years, the drug and device industry have used Constitutional litigation, sometimes with spectacular effectiveness, to overturn statutes and challenge regulations.  Examples include Wyeth v. Levine; Riegel v. Medtronic; and Abigail Alliance.

Even more remarkable has been the commercial speech litigation.  United States v. Caronia (DC case on free speech and off-label promotion); and IMS v. NH (1st Cir; first amendment claims against a data privacy statute aimed to curb marketing abuses).  Other important 1st Amendment FDA cases include Thompson v. Western States Medical Center, 535 U.S. 357 (2002) (advertising unapproved pharmacy compounding); Washington Legal Foundation v. Henney, 128 F. Supp. 2d 11 (Dist Ct. D.C., 2000) (off label promotion).

Clearly, something is afoot, with powerful Constitutional arguments deployed to challenge democratically-enacted statutes.  But the plaintiffs aren’t oppressed minorities, but some of the world’s most powerful corporations, with incredible lobbying resources in Washington, the states, and around the globe.   How do we mesh theories of the Constitution with these cases?

The focus of the panel will be Commercial Speech litigation in the drug industry.  We will discuss the cases mentioned above, with significant discussion of the broader Constitutional issues and impact on theory.