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12 Hastings Comm. & Ent. L.J. 535 (1989-1990)
Doctors Can Just Say No: The Constitutionality of Consumer-Directed Advertising of Prescription Drugs

handle is hein.journals/hascom12 and id is 555 raw text is: Doctors Can Just Say No: The Constitutionality of Consumer-Directed Advertising of Prescription Drugs by MICHELLE D. EHRLICH* Introduction Americans who suffer from arthritis, allergies, baldness, heart ail- ments, or who use oral contraceptives or want to quit smoking, may now learn of prescription remedies without a physician's guidance-through advertising directly targeted at them. Until 1988, the general consensus within the pharmaceutical industry was that federal law prohibited ad- vertising of prescription drugs by name to the general public., Federal law has not changed, but the industry's opinion has. The Upjohn Com- pany blazed the trail in late 1989 with advertisement of its anti-baldness treatment by name;2 other pharmaceutical companies have since found it desirable to follow suit. One explanation may be that, as brand-name drugs' patents expire, the drug manufacturers are concerned with main- taining the lead against generic drug manufacturers. The biggest explosion caused by these ads is not in their numbers, but in the surrounding ethical debate. The interests of three groups are at stake: consumers/patients, physicians, and manufacturers. Advertis- ing prescription drugs to the public meets strong opposition from mem- bers of Congress, certain consumer groups, and the medical profession. The arguments against advertising such products include harm to the consumer/patient, harm to the patient-doctor relationship, increased costs of drugs, increased demand for drugs, unnecessary drug consump- tion and, that this type of commercial speech is unprotected by the first amendment. * B.A. University of California, Los Angeles, 1985; J.D., University of California, Has- tings College of the Law, 1990. This Note is dedicated to my parents, Janet and Morton Ehrlich, for their endless support and encouragement. 1. Horovitz, Upjohn Must Keep a Cool Head in Marketing its Baldness Drug, L.A. Times, Aug. 19, 1988, at D1, col. 3. 2. Bernstein, Prescription Drugs: Pitching Directly to the Patient, U.S. NEWS & WORLD REPORT, Jan. 15, 1990, at 46.

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