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Dissemination of Information
Why is Labeling so Important? How is Drug Labeling Different from
Other Consumer Product Labeling? How is Rx Labeling Different from
OTC Labeling? Why is Drug Advertising Different
from Other Consumer Product Advertising?
Legal Regulation of Speech
Personal and political speech
Ideas can be stupid, wrong, and dangerous
Deadly diets and self-help books Violent movies
Legal Remedies
No prior restraint Usually cannot prevent publication Can sue afterwards if the speech is
actionable
Defamation
Exceptions for public figures Opinions are protected Truth is a defense
Intentional interference with a business relationship
Like defamation but of a business Can be easier to prove than
defamation because truth is not a defense
Product disparagement laws are constitutionally suspect Oparh's comments about burgers Hollywood personalities comments about
pesticides in apples
Invasion of Privacy
Publishing sensitive personal information
Truth is not a defense Key is usually that you violate the
law in getting it, and that is an important part of the action
Copyright
You cannot use other's words Some rights of fair use
Trade secrets
Can be enjoined (prior restraint) Treated as taking another's
property, not as speech Can be difficult to undo publication
on the Internet
National security
Cannot tell government secrets What if you develop a code that
the government wants suppressed?
Commercial speech
Speech in conjunction with selling products and services
Traditionally Not Subject to 1st Amendment Protections
New Jurisprudence Recognized Commercial Speech Protections in the 1970s
Regulation of Commercial Speech
Much less protection More like action than speech Extensively regulated for Deceptive Key Question
Can the Government Regulate or Ban Truthful Commercial Speech?
Why Would the Government Want to?
Drug names Chemical name
a long, descriptive name that allows a chemist to draw the structure of the molecule7-chloro-1,3-dihydro- 1-methyl-5-phenyl-2H-1,4-benzodiazepin-2-one
Established name a generic name for the chemical which anyone may use in
lieu of the chemical name, i.e., a name that is not a trademarkdiazepam
Trade name the trademarked name of that a specific manufacturer
uses to sell a drug, which can only be used by the manufacturer or with its permission. For example, the patent has long expired on Valium and it is sold as a generic, but only the owner of the trade name can call it Valium.
