Deductions for Drug Ads? The Constitution Does Not Require Congress to Subsidize Direct-To-Consumer Prescription Drug Advertisements

Authors

Kevin Outterson, Boston University School of LawFollow
Shoshana Speiser

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

2012

ISSN

0146-0315

Publisher

University of Santa Clara School of Law

Language

en-US

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.

Comments

Boston University School of Law, Public Law Research Paper No. 12-11

Recommended Citation

Kevin Outterson & Shoshana Speiser, Deductions for Drug Ads? The Constitution Does Not Require Congress to Subsidize Direct-To-Consumer Prescription Drug Advertisements , in 52 Santa Clara Law Review 453 (2012).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/93