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Letters: Free speech and pharmaceuticals

December 12, 2012

Re "Appeals court puts 1st Amendment over public health," Column, Dec. 7

Thanks for the column about the U.S. 2nd Circuit Court of Appeals' troubling decision on off-label uses of prescription drugs.

The Supreme Court has been heading toward this decision for years. Before the 1970s, "commercial speech" was considered outside the scope of the 1st Amendment. That was then. In the coming year, a Supreme Court focused on abstract ideas rather than actual experience may decide not only that drug makers can advertise wholly untested uses of their products but also that the federal government cannot restrict tobacco advertising. or require effective warnings. Why? Because the court doesn't see a clear distinction between commercial advertising and political or religious speech.

Most consumers think it's a good idea to give the government more leeway to limit ads for potentially harmful products. But the wisdom of the average consumer doesn't seem to play much of a role in the judicial decisions that affect our health and our safety.

Ted Mermin

Berkeley

The writer is the co-founder and executive director of the Public Good Law Center.

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