This Article argues that pharmaceutical marketing to doctors should be more critically evaluated and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court's 2011 decision in Sorrell. In particular, the Article argues that more information to doctors in the form of pharmaceutical marketing does not necessarily result in better patient outcomes. The Article adds a significant critique based on the existence and impact of cognitive bias literature that has thus far not been recognized in this area. If courts fully embrace this understanding, they should recognize that the government, through the Food and Drug Administration, has a right to limit statements that may encourage doctors to prescribe unapproved uses of drugs with potentially fatal consequences. This Article reveals that recent expansion of First Amendment jurisprudence is based on key cognitive biases and assumptions. First, courts, and even some doctors themselves, improperly assume that doctors are adequately sophisticated, such that doctors are protected from self-interested marketing, which this Article demonstrates as inconsistent with reality. Second, current case law assumes that the availability of more information necessarily promotes better decisions so long as it is not patently false, a proposition that this Article shows is especially unfounded in the unique market of prescription drugs. Importantly, such assumptions can have critical health consequences since they promote uses of drugs for which there is often inadequate scientific basis and serious health consequences. Finally, this Article builds upon the revealed cognitive biases to suggest empirically-informed changes to cabin the expansion of First Amendment protection of pharmaceutical marketing as well as broader structural reform. This Article proposes to treat potentially misleading information differently than entirely truthful speech, thus giving states greater discretion to regulate potentially misleading information. In addition, this Article proposes that the burden of proof in such cases should be reversed, so that courts will no longer consider disclaimers as a true alternative to speech restriction without proof that companies will actually promote more informed decisions. The Article also suggests structural changes to medical education, drug development, and marketing informed by the cognitive biases revealed here.
Cynthia M. Ho, A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection, 94 Ind. L.J. 773 (2019).