Boston University School of Law

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

Shoshana Speiser
Legal Fellow for the Northeast Regional Office of the Federal Trade Commission

Kevin Outterson
Boston University School of Law

Boston University School of Law, Public Law & Legal Theory Paper
No. 12-11
(February 27, 2012)

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 requires 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.

 

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Suggested Citation:
Shoshana Speiser and Kevin Outterson, "Deductions for Drug Ads? The Constitution Does Not Require Congress to Subsidize Direct-to-Consumer Prescription Drug Advertisements," 52 Santa Clara Law Review 453 (2012); B.U. Law Paper No. 12-11 (February 27, 2012); SSRN Paper No. 2011879.

Kevin Outterson
Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215
Email: mko@bu.edu
Office Phone: (617) 353-3135

Shoshana Speiser

Email: shoshana.speiser@gmail.com

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