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Big Pharma's Direct-to-Consumer Advertising Is A Constitutional Right

by Wes Messamore, published

Yesterday my esteemed colleague, Mike Abrams, wrote a piece recommending a ban on direct-to-consumer pharmaceutical advertising as a remedy for prescription drug abuse in the United States. As will inevitably happen when there is a meeting of reasonable and independent minds, as we are trying to foster here at the Independent Voter Network, there will also be a diversity of opinions and disagreements.

While acknowledging the compelling picture Abrams paints of the harms of prescription drug abuse in this country, my purpose in this article is to outline perspective on "Big Pharma" that emphasizes the crucial importance of both free speech and consumer choice in this matter, two basic liberties that should not be abridged in the pursuit of our shared desire to mitigate the harms of prescription drug abuse in this country. As importantly, I hope these two differing articles will serve as an illustration of how an independent debate can look in this country. Readers should note that Abrams and myself have made our respective cases on the basis of substantive discussion, facts, and reason-- without once using the words "Democrat" or "Republican." It is my honor, great fortune, and true delight to have a platform like The Independent Voter Network to rationally discuss competing conceptions of a better America with minds I respect.

Returning to Big Pharma, even if the harms of prescription drug abuse are, in fact, directly attributable to direct-to-consumer pharmaceutical advertising, I believe a ban on such advertising is a solution that causes more harm than the problem. Within the framework of America's civil liberties guaranteed by the Constitution in the Bill of Rights, this country has thrived because no idea is off limits or allowed to be forcibly suppressed. The freedom of choice enjoyed by individuals in this country allows them to freely share and consider all ideas, accept or reject them, and take actions accordingly. The First Amendment, which guarantees free speech, must be inviolable. Any exceptions for the purpose of harm mitigation, however well-intentioned, set a precedent for more exceptions and threaten free speech for all.

Pertinent to this discussion is the issue of "corporate personhood" and the question: Do corporations have a right to free speech under the First Amendment just like individuals? The New York Times Company is a corporation. Does it have a right to free speech? Would corporate personhood opponents agree that the federal government can abridge its speech because it is a corporation? I would aver that to say no, as the Supreme Court has, does not confer personhood on corporations, but recognizes that corporations are voluntary associations of individual people, who do have a right to free speech, and who have merely pooled their resources and talents together to achieve a common goal.

For pharmaceutical companies, that goal is to create and distribute drugs that make our lives better. To those that would object that its primary goal is profits, I would rebut that Big Pharma's prices are not necessarily an indication of wanton greed, but a direct, predictable, and understandable result of the heavy research and development pharmaceuticals do to discover new treatments and cures that improve our quality of life. Higher prices in this industry reflect the higher financial risks of investing billions in research and studies that can take years or decades to produce results, without any guarantee that they will produce results at all.

Banning direct-to-consumer advertising would not only add another crack to an already crumbling Bill of Rights; it would cut into the research budgets of Big Pharma companies that might discover an effective AIDS vaccine in the years to come. If consumers see a television commercial about a product that they think might improve their lives and make a personal choice to help fund AIDS and cancer research with their consumer dollars in exchange for the product-- with a prescription from, and the guidance of a licensed physician-- why use the force of federal regulation to erect a barrier against the voluntary exchange of information and goods between these parties?

If we start with a ban on pharmaceutical advertising to mitigate harm to Americans, where will it end? The rising trends in obesity and fast food consumption (where corporate profits aren't looking too shabby either) are markedly effecting the health of Americans and leading to early deaths because of heart disease and diabetes, and the purpose of fast food consumption isn't even to ostensibly improve health or alleviate ailments like prescription drug use. It's plainly recreational and self-indulgent. To mitigate the resulting harms, should we ban fast food advertising? Are the automobiles that teenagers die in every year too dangerous to allow car companies to advertise them to consumers? Can Americans be trusted to make decisions for themselves?

In the end, that may be the most fundamental issue at stake-- the right of the consumer to make choices about his or her own body and to voluntary receive information from anyone-- including Big Pharma-- about those choices. Prescription drug use in this country is on the rise, but who is a Washington legislator or regulator to enforce a certain assessment of this trend on a matter so subjective and personal as how individuals perceive their bodies and what substances they choose to put into them? As a consumer, I have a right to listen to pharmaceutical companies if I want to, as much as they have a right to share information with me if they want to. I also have the right not to listen. No American is forced to purchase prescription drugs (though we'll see if the Affordable Care Act forces them to purchase health insurance for prescription drugs), and certainly no American is forced to watch television. These are choices we are free to make.

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