Docket Management
Docket: 02N-0209 - Request for Comment on First Amendment Issues
Comment Number: EC -83

Accepted - Volume 1

Comment Record
Commentor Mr. Lee M. Holmes Date/Time 2002-05-31 05:25:53
Organization Mr. Lee M. Holmes
Category Individual

Comments for FDA General
Questions
1. Are there arguments for regulating speech about drugs more comprehensively than, for example, about dietary supplements? What must an administrative record contain to sustain such a position? In particular, could FDA sustain a position that certain promotional speech about drugs is inherently misleading, unless it complies with FDA requirements? Does anything turn on whether the speech is made to learned intermediaries or to consumers? What is the evidentiary basis of such a distinction? There is no justification for FDA censorship at all. Protecting the public by bureaucratic judgement in exerting censorship violates the First Amendment. Legal action by the plaintiffs' bar will correct mis-statements by advertisers.
2. Is FDA's current position regarding direct-to-consumer and other advertisements consistent with empirical research on the effects of those advertisements, as well as with relevant legal authority? What are the positive and negative effects, if any, of industry's promotion of prescription drugs, biologics, and/or devices? Does the current regulatory approach and its implementation by industry lead to over-prescription of drugs? Do they increase physician visits or patient compliance with medication regimes? Do they cause patient visits that lead to treatment for under-diagnosed diseases? Does FDA's current approach and its implementation by industry lead to adequate treatment for under-diagnosed diseases? Do they lead to adequate patient understanding of the potential risks associated with use of drugs? Does FDA's current approach and its implementation by industry create any impediments to the ability of doctors to give optimal medical advice or prescribe optimal treatment? The FDA begs the question of whether it impacts the First Amendment. The FDA's actions bear an uncanny resemblance to the FCC's 60 - odd years of violating broadcasters' rights, by vainly claiming that protecting the public or fairness justifies speech restrictions.
3. May FDA distinguish claims concerning conventional foods from those relating to dietary supplements, taking into account limits on claims that can be made about foods in the Nutrition Labeling and Education Act, 21 U.S.C. 301, 321, 337, 343, 371? What must an administrative record contain to sustain or deny claims on food labels? How can information best be presented in a succinct but non-misleading fashion? To what extent do assertions in claims need qualifications or disclaimers added to the label to avoid any misconceptions that consumers may draw? Is there a basis to believe that consumers approach claims about conventional foods and dietary supplements differently? Again, the FDA begs the question. FDA restriction on speech hurts the public's ability to know and adds to the cost of supplements.
4. Should disclaimers be required to be in the same (or smaller or larger) size of type and given equal prominence with claims? Is there any relevant authority or social science research on this issue? The government should not be prescribing type sizes! STOP IT.
5. How can warnings be made most effective in preventing harm while minimizing the chances of consumer confusion or inattention? Is there any evidence as to which types of warnings consumers follow or disregard? EPA and FDA warnings are so voluminous that they increase the tendency of consumers to ignore them. So far, there is little evidence that long warnings are more effective than the Surgeon General's brief cigarette warnings.
6. What arguments or social science evidence, if any, can be used to support distinguishing between claims made in advertisements and those made on labels? Does the First Amendment and the relevant social science evidence afford the Government greater latitude over labels? The First Amendment absolutely fails to afford the government greater latitude over labels; it says, STOP!
7. Would permitting speech by manufacturer, distributor, and marketer about off-label uses undermine the act's requirement that new uses must be approved by the FDA? If so, how? If not, why not? What is the extent of FDA's ability to regulate speech concerning off-label uses? Forget the act; ask the Court to strike it down as unconstitutional! Quit trying to get around the First Amendment!
8. Do FDA's speech-related regulations advance the public health concerns they are designed to address? Are there other alternative approaches that FDA could pursue to accomplish those objectives with fewer restrictions on speech? No. Stop restricting speech.
9. Are there any regulations, guidance, policies, and practices FDA should change, in light of governing First Amendment authority? Absolutely! The FDA should obey the Court, and quit trying to evade its decision. Stop telling supplement manufacturers what they must and must not say.




EC -83