Deep Dive Episode 17 – Off-Label Promotion and Free Speech in Medicine

Federal regulation strictly limits how pharmaceutical companies share information about the legal use of their products. Companies that promote or advertise the use of medicines or medical devices in ways that the Food and Drug Administration (FDA) has not approved—so-called “off-label use”—are subject to prosecution for the crime of “misbranding.” In other words, it is legal—and very common—for a physician to prescribe a medicine or to use a device for an off-label purpose but, it is illegal for a company to talk about it. This regulatory framework has been defended, in part, as necessary to prevent companies from misleading the public about drug risks and effectiveness.  Others argue that this limitation amounts to impermissible speech regulation upon those with the most knowledge about drugs and their possible uses and side effects.

This podcast will cover the First Amendment implications of the FDA’s regulation, legal history and major court decisions and settlements, and how state governments are handling the issue.

Christina Sandefur

Executive Vice President

Goldwater Institute

FDA & Health

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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