From: WendyMil@cs.com
Sent: Tuesday, September 10, 2002 10:50 AM
To: fdadockets@oc.fda.gov
Subject: Corporations and free speech protections

* 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. 

* 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.
 
* The courts rationalize 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 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. Each person within a corporation is designated in the constitution as 
having the right to free speech.  Coporations are entities and should not 
have the right to free speech.  As they wrongly do have this right under 
existing court decisions, the appropriate response of the FDA is to push as 
hard as possible against the limits of these misguided constitutional 
protections. 

Please do the right thing and protect the American people from the overreach 
of these corporations.

Wendy Miller