From: P Feddersen [wandrian@mindspring.com]
Sent: Sunday, September 08, 2002 2:14 PM
To: fdadockets@oc.fda.gov
Subject: COMMENTS ON CORPORATE CONSTITUTIONAL RIGHTS AND COMMERCIAL SPEECH
Dear Sir, 
I feel the FDA's position should be that public health takes priority over commercial speech considerations, and the agency should do everything it can to defend its authority to restrict commercial speech in the effort to protect public health. 

    Further more the FDA should emphasize that commercial speech serves promotional purposes much more than educational ones. These promotional purposes do not deserve constitutional protection and -- even when not technically untruthful or misleading -- may by omission, emphasis or emotional appeal spur consumer  purchasing patterns that are contrary to public health goals i.e. cigarette smoking and fast food fat consumption. 

     The courts have rationalized commercial speech protections on the grounds that  commercial speech provides information to the public. If this is the goal -- rather 
than protecting an inherent right to advertise -- it makes sense for the government 
to make determinations about whether the commercial information actually will 
educate the public to advance public policy goals. In many instances, this will not 
be the case. And regulatory agencies are in better position to make such determinations than the courts. 

    If there are going to be commercial speech protections, it should be enough for the FDA or other federal agencies to show that regulations reasonably work to directly advance legitimate governmental goals. The FDA and other agencies should not be subject to a "least restrictive" test, where they are forced to show that there was no less speech restrictive means to achieve their goal. One can always imagine less speech restrictive means -- even if they are politically unachievable or would fail to work in practice. 

     Overly broad commercial speech protections will inappropriately transform legislative or regulatory decisions about public health issues into constitutional issues. (This is an argument Justice Breyer made in dissent in Western States Medical Center.) 

    Because corporations should not, in my opioion, have any constitutional protections, and because commercial speech should not receive constitutional protection, the FDA should press as hard as possible against existing limitations in these areas. Corporations are made up of people who already have constituionally protected rights to free speech.  
    Even though corporations do have those rights  under existing court decisions, I urge the FDA to push as hard as possible against the limits of these misguided constitutional protections. 

Sincerely, 
Peggie Feddersen 
401 Elm Street 
Raleigh, NC 27604 
wandrian@mindspring.com