Call for Papers -
Section on Law, Medicine and Health Care, Co-Sponsored with the Section on Constitutional Law
Constitutional Health Law: Pharmaceutical Regulation and Commercial Speech
In the past few years, the drug and device industries have tried Constitutional litigation to challenge statutes and challenge regulations. Examples include Wyeth v. Levine (US 2009) (preemption of state tort and common law for drugs); Riegel v. Medtronic (US 2008) (preemption for some classes of medical devices). Other examples include due process & liberty claims asserted against the FDA drug approval system, Abigail Alliance (DC Cir, rev’d en banc).
Even more remarkable has been the commercial speech litigation. United States v. Caronia (DC case on free speech and off-label promotion); IMS v. Ayotte (1st Cir; first amendment claims against a data privacy statute aimed to curb marketing abuses) (related cases in VT (IMS v. Sorrell) and ME). Other important 1st Amendment cases include Thompson v. Western States Medical Center, 535 U.S. 357 (2002) (advertising unapproved pharmacy compounding); and 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 being successfully 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? Is commercial speech the new incarnation of Lochner?
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. Confirmed panelists are: Dr. Aaron Kesselheim (Harvard Medical School, expert witness for Vermont in IMS v. Sorrell); Richard Epstein (Chicago); and Ed Baker (Penn). Kevin Outterson (BU) will moderate.
Call for Speakers: We are issuing an open Call for Speakers to fill the remaining 2 slots at the section’s Annual Meeting program, focusing on health law perspectives on these issues. Send a one or two paragraph summary of your topic to mko@bu.edu <mailto:mko@bu.edu> by August 15, 2009.