Cornell journal of law and public policy
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Cornell J Law Public Policy · Jan 2013
Snake oil salesmen or purveyors of knowledge: off-label promotions and the commercial speech doctrine.
The Second Circuit's December 2012 decision in United States v. Caronia striking down the prohibition on off-label marketing of pharmaceutical drugs has profound implications for economic regulation in general, calling into question the constitutionality of restrictions on the offer and sale of securities under the Securities Act of 1933, the solicitation of shareholder proxies and periodic reporting under the Securities Exchange Act of 1934, mandatory labels on food, tobacco, and pesticides, and a wide range of privacy protections. In this Article we suggest that Caronia misconstrues the Supreme Court's holding in Sorrell v. ⋯ We argue that as long as the government both has a rational basis for subjecting a particular industry to limits on commercial speech intended to further a legitimate public interest, rather than unfounded paternalism, and does not discriminate against disfavored industry participants, those limits should be subject to intermediate scrutiny under the Central Hudson standard. We believe that our articulation of the commercial speech doctrine post-Sorrell will help resolve the current split in the Circuits on the appropriate standard of review in cases involving both restrictions on commercial speech and mandated speech. Finally, we critique the FDA's 2011 Guidance for Responding to Unsolicited Requests for Off- Label Information (draft) and present a proposal for new rules for regulating the off-label marketing of pharmaceutical drugs based on transparency, the sophistication of the listener and the type of information offered, and the requirement that the pharmaceutical company comply with ongoing duties of training, monitoring, reporting, and auditing.
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This Note examines New York City's Sugary Drinks Portion Cap Rule (Soda Ban), which was originally set to become effective March 12, 2013. The New York County Supreme Court's decision in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene suspended the Soda Ban on March 11, 2013. ⋯ By comparing and contrasting tobacco products with sugary beverages, this Note explains why the public seems to find the Soda Ban less appealing than tobacco regulations. Specifically, this Note addresses how the failed attempts of numerous states and cities to implement soda taxes demonstrate the complexity of policies geared toward curbing obesity; how fundamental values, such as health, fairness, efficiency, and autonomy factor into obesity policies; and the fact that legislatures and courts are struggling to determine the scope of public health law intervention. The Note explores how the Soda Ban, despite its judicial suspension, could represent a stepping-stone in combating the obesity epidemic.