Drug Risks and Free Speech — Can Congress Ban Consumer Drug Ads?

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Abstract
In 2004, the discovery that Vioxx (rofecoxib) was a risky drug put direct-to-consumer pharmaceutical advertising in the spotlight. The image of Dorothy Hamill lacing up her skates and gliding over the ice despite her osteoarthritis offered a disturbing contrast to the public realization that millions of patients who were lured by the ad into taking Vioxx were risking stroke or myocardial infarction. Now, 3 years later, legislation that — if it is not amended, as some legislators want — would allow the Food and Drug Administration (FDA) to block direct-to-consumer ad campaigns for new drugs has been introduced in Congress (see graph ). There is popular support for a ban: in a telephone survey conducted in March 2007 by Consumer Reports, 59% of respondents “strongly agreed” that the FDA should ban advertisements for drugs that had safety problems. But some legal scholars believe that such a ban would be overturned by the courts as unconstitutional. If Congress wants to turn its proposals into law, said Robert Post of Yale Law School, it needs to find a different way of approaching the issue.

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